Title: DEPARTMENT OF THE NAVY
Author: CAP
Last saved by: Garcia-Anglin, Nuchy CIV CORB, NDRB
Company: NCPB

Docket No. MD13-01724

ex-, USMC

Current Discharge and Applicant’s Request

Application Received:  20130823
Characterization of Service Received:   
Narrative Reason for Discharge:   
Authority for Discharge:   MARCORSEPMAN 

Applicant’s Request:	Characterization change to: 
	Narrative Reason change to: HARDSHIP
	
Summary of Service

Prior Service:
Inactive:	USMCR (DEP)	19970813 - 19980816  	Active:	

Period of Service Under Review:
Date of Current Enlistment:  19980817	Age at Enlistment:  
Period of Enlistment:   Years   Months
Date of Discharge:  20010814	Highest Rank:  
Length of Service:    Years    Months  29  Days
Education Level:  	AFQT:  34
MOS:  0341
Proficiency/Conduct Marks (# of occasions):   () /  ()	Fitness Reports:  

Awards and Decorations (per DD 214):	Rifle   

Periods of UA/CONF:  

NJP:  

- 2000531:	Article  (Failure to obey order or regulation, 2 specifications)
	Specification 1: On or about 09 May 2000, did wrongfully disobey a lawful order by consuming alcohol under the age of 21  
	Specification 2: On or about 09 May 2000, did wrongfully disobey a lawful order by not signing out in liberty logbook
	Article  (Insubordinate conduct toward warrant, noncommissioned, petty officer; on or about 10 May 2000, was disprespectful toward Cpl H___)
	Awarded:    Suspended:  

- 20010510:	Article  (Absence without leave; on or about 01 April 2001, on diverse occasions was UA from appointed place of duty, until on or about 1000, 10 April 2001)
	Awarded:     Suspended:  

- 20010608:	Article 81 (Conspiracy; did on or about 31 May 2001, conspire with LCpl B____ and LCpl W___ to commit an offense under the UCMJ, to wit: beaking restriction, and in order to effect the object of the conspiracy, the said fabricated a story to the Battalion Officer of the Day)
	Article  (General Article, breaking restriction)
	Awarded:     Suspended:  

SCM:  

- 19991203:	Article  (Absence without leave, from on or about 12 October 1999 to on or about 21 October 1999)
	Sentence:  

SPCM:  	CC:  

Retention Warning Counseling:  

- 19991101:	For violation of UCMJ Article 86, absent without leave from 12 October 1999 to 21 October 1999.

- 19991117:	For underage drinking.

- 20000406:	For underage drinking.

Types of Documents Submitted/reviewed

Related to Military Service:
	DD 214:		Service/Medical Record:		Other Records:	

Related to Post-Service Period:
	Employment:		Finances:		Education/Training:	
	Health/Medical Records:		Rehabilitation/Treatment:		Criminal Records:	
	Personal Documentation:		Community Service:		References:	
	Department of VA letter:		Other Documentation:	
		Additional Statements:
	From Applicant:		From/To Representation:		From/To Congress member:	

Pertinent Regulation/Law

A.  Paragraph 6210, MISCONDUCT, of the Marine Corps Separation and Retirement Manual, (MCO P1900.16E), effective 31 January 1997 until 31 August 2001.

B.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part II, Para 211, Regularity of Government Affairs, Part V, Para 502, Propriety and Para 503, Equity.

DEPARTMENT OF THE NAVY
NAVAL DISCHARGE REVIEW BOARD (NDRB)
DISCHARGE REVIEW DECISIONAL DOCUMENT

Applicant’s Issues

1.	The Applicant seeks an upgrade to enhance employment opportunities and to have his Reentry Code changed.  
2.	The Applicant seeks a change in his Narrative Reason for Separation from Misconduct to Hardship.
3.	The Applicant contends his discharge is inequitable based on mitigating circumstances.  
4.	The Applicant contends his in-service conduct warrants consideration for an upgrade.
5.	The Applicant contends his post-service conduct warrants consideration for an upgrade.

Decision

Date:  20140312		Location: Washington D.C.	 Representation: 

By a vote of  the Characterization shall  .
By a vote of  the Narrative Reason shall  .

Discussion

The NDRB, under its responsibility to examine the propriety and equity of an Applicant’s discharge, is authorized to change the character of service and the reason for discharge if such change is warranted.  In reviewing discharges, the Board presumes regularity in the conduct of governmental affairs unless there is substantial credible evidence to rebut the presumption, to include evidence submitted by the Applicant.  The Board did complete a thorough review of the circumstances that led to  discharge and the discharge process to ensure  discharge met the pertinent standards of equity and propriety.  The Applicant’s record of service included  6105 counseling warnings,   for  of the Uniform Code of Military Justice (UCMJ): Article 92 (Failure to obey order or regulation, 2 specifications), Article 91 (Insubordinate conduct toward warrant, noncommissioned, petty officer), Article 86 (Absence without leave), Article 81 (Conspiracy), and Article 134 (General Article, breaking restriction), and   for  of the UCMJ: Article 86 (Absence without leave).  Based on the offenses committed by the Applicant,  command administratively processed  for separation.  When notified of administrative separation processing using the  procedure, the Applicant waived  rights to consult with a qualified counsel, submit a written statement, and request an administrative board.

:  (Nondecisional)  The Applicant seeks an upgrade to enhance employment opportunities and to have his Reentry Code changed.  The NDRB has no authority to upgrade a discharge for the sole purpose of enhancing employment opportunities.  Regulations limit the NDRB’s review to a determination of the propriety and equity of the discharge.  Also, the NDRB is not authorized to change a reenlistment code.  Only the Board for Correction of Naval Records can make changes to reenlistment codes.

:  (Decisional) ()  .  The Applicant seeks a change in his Narrative Reason for Separation from Misconduct to Hardship.  Per the Marine Corps Separation and Retirement Manual, a Marine may request discharge by reason of hardship if the hardship is not temporary, the Marine has made every effort to remedy the situation, separation will eliminate or materially alleviate the condition, and there is no other means of alleviation reasonably available.  The Applicant did not provide sufficient information to the NDRB to demonstrate he properly requested discharge on the basis of hardship or that he met the criteria for discharge by reason of hardship.  However, even if the Applicant could show he met the criteria for discharge by reason of hardship, it would neither amount to a justification nor a defense for the Applicant’s misconduct.  After reviewing the Applicant’s issues, supporting documents, and the evidence of record, the NDRB determined his separation for a Pattern of Misconduct was proper.  Relief denied.

:  (Decisional) ()  .  The Applicant contends his discharge is inequitable based on mitigating circumstances.  The Applicant cited the sexual assault of his wife in March 2001 and contends his command did not provide the necessary assistance or time to properly attend to his wife’s needs.  The government enjoys a presumption of regularity in the conduct of its affairs.  The Applicant bears the burden of overcoming this presumption through the presentation of substantial and credible evidence to support his issue.  The NDRB does not dispute the Applicant’s claim that his wife was the victim of a sexual assault.  However, there is no evidence in the record, nor has the Applicant produced 

any evidence, to support his contention that he was wrongly charged with violations of the UCMJ and subsequently administratively separated for a pattern of misconduct.  During the separation proceedings, the Applicant waived his right to consult with counsel, request a hearing before an Administrative Separation Board, and submit a rebuttal to the separation.  If the Applicant believed there were mitigating circumstances, it was his obligation to contest those charges at the time they were made.  During an Administrative Separation Board, he would have had the opportunity to mount a defense against the charges.  The Applicant’s statements alone do not overcome the government’s presumption of regularity in this case.  Relief denied.

4:  (Decisional) ()  .  The Applicant contends his in-service conduct warrants consideration for an upgrade.  During the Applicant’s three years of service, he received three retention warnings, was found guilty at three NJPs and a Summary Court-Martial of committing numerous UCMJ violations, and received below average overall Proficiency and Conduct marks of 3.9/3.5.  With this misconduct, he met the requirements for administrative separation for Misconduct (Serious Offense) and Misconduct (Pattern of Misconduct).  Despite being given numerous opportunities to correct his poor behavior, the Applicant continued to engage in misconduct until his command finally determined he was no longer fit to serve as a Marine.  Since the Applicant was administratively separated and not separated upon expiration of enlistment or fulfillment of service obligation, the characterization of service is determined by the quality of the member’s total performance of duty and conduct during the current enlistment, including the reason for separation.  Other considerations shall be given to the member’s length of service, grade, aptitude, and physical and mental condition.  Based on the Applicant’s record of service, the NDRB determined the Applicant engaged in conduct involving one or more acts or omissions that constituted a significant departure from the conduct expected of members of the Naval Service, and the awarded characterization of service was warranted.  Relief denied.

Also, the Applicant was never awarded a Marine Corps Good Conduct Medal.  To be awarded a Marine Corps Good Conduct Medal, one must serve without misconduct for three consecutive years.  The Applicant served less than three years and had multiple instances of misconduct during his enlistment.  The confusion likely arose from Block 18 on his DD Form 214, which reset the three-year counter to 8 June 2001, which is the date of his third and final NJP.  

5:  (Decisional) ()  .  The Applicant contends his post-service conduct warrants consideration for an upgrade.  The NDRB considers outstanding post-service conduct to the extent such matters provide a basis for a more thorough understanding of the Applicant’s performance and conduct during the period of service under review.  The Applicant provided a personal statement, a certificate of completion (Insurance Agents Course) from Pohs Institute, transcripts from Touro College, and three character references.  Additionally, the Applicant submitted documentation that indicates he served honorably in the Army National Guard, deployed to Iraq on two occasions, earned the Army Achievement Medal, and was discharged due to disability.  Completion of these items alone does not guarantee an upgrade from an unfavorable discharge as each discharge is reviewed by the Board on a case by case basis to determine if post-service conduct establishes that the in-service misconduct was an aberration.  Based on the extensive misconduct in the Applicant’s record, the Board determined the documentation submitted by the Applicant does not demonstrate if in-service misconduct was an aberration.  The characterization of service received was appropriate considering the length of service and UCMJ violations.  Relief denied.

Summary:  After a thorough review of the available evidence, to include the Applicant’s summary of service,  record entries, and discharge process, the Board found   Therefore, the awarded characterization of service shall   and the narrative reason for separation shall remain .  The Applicant remains eligible for a personal appearance hearing for a period of fifteen years from the date of  discharge.  The Applicant is directed to the Addendum for additional information.

ADDENDUM:  Information for the Applicant

Complaint Procedures:  If you believe the decision in your case is unclear, not responsive to the issues you raised, or does not otherwise comport with the decisional document requirements of DoD Instruction 1332.28, you may submit a complaint in accordance with Enclosure (5) of that Instruction to the Joint Service Review Activity, OUSD (P&R) PI-LP, The Pentagon, Washington, DC  20301-4000.  You should read Enclosure (5) of the Instruction before submitting such a complaint.  The complaint procedure does not permit a challenge of the merits of the decision; it is designed solely to ensure that the decisional documents meet applicable requirements for clarity and responsiveness.  You may view DoD Instruction 1332.28 and other Decisional Documents by going online at “http://Boards.law.af.mil.”

Additional Reviews:  After a document review has been conducted, former members are eligible for a personal appearance hearing, provided the application is received at the NDRB within 15 years of the Applicant’s date of discharge.  The Applicant can provide documentation to support any claims of post-service accomplishments or any additional evidence related to this discharge.  Representation at a personal appearance hearing is recommended but not required.  There are veterans organizations such as the American Legion and the Disabled American Veterans that are willing to provide guidance to former service members in their efforts to obtain a discharge upgrade.  If a former member has been discharged for more than 15 years, has already been granted a personal appearance hearing or has otherwise exhausted their opportunities before the NDRB, the Applicant may petition the Board for Correction of Naval Records (BCNR), 701 South Courthouse Road, Suite 1001, Arlington, VA 22204-2490 for further review.

Service Benefits:  The U.S. Department of Veterans Affairs (VA) determines eligibility for post-service benefits, not the NDRB.  There is no requirement or law that grants recharacterization solely on the issue of obtaining veterans benefits and this issue does not serve to provide a foundation upon which the Board can grant relief.

Employment/Educational Opportunities:  The NDRB has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities.  Regulations limit the NDRB’s review to a determination of the propriety and equity of the discharge.

Reenlistment/RE-code:  Since the NDRB has no jurisdiction over reenlistment, reentry, or reinstatement into the Navy, Marine Corps, or any other of the Armed Forces, the NDRB is not authorized to change a reenlistment code.  Only the BCNR can make changes to reenlistment codes.  Additionally, the NDRB has no authority to upgrade a discharge for the sole purpose of enhancing reenlistment opportunities.  An unfavorable “RE” code is, in itself, not a bar to reenlistment.  A request for a waiver can be submitted during the processing of a formal application for reenlistment through a recruiter.

Medical Conditions and Misconduct:  DoD disability regulations do not preclude a disciplinary separation.  Appropriate regulations stipulate that separations for misconduct take precedence over potential separations for other reasons.  Whenever a member is being processed through the Physical Evaluation Board, and is processed subsequently for an administrative involuntary separation or is referred to a court martial for misconduct, the disability evaluation is suspended pending the outcome of the non-disability proceedings.  If the action includes either a punitive or administrative discharge for misconduct or for any basis wherein an Other Than Honorable discharge is authorized, the medical board report is filed in the member’s terminated health record.  Additionally, the NDRB does not have the authority to change a narrative reason for separation to one indicating a medical disability or other medical related reasons.  Only the BCNR can grant this type of narrative reason change.

Automatic Upgrades - There is no law or regulation that provides for an unfavorable discharge to be upgraded based solely on the passage of time or good conduct subsequent to leaving naval service.

Post-Service Conduct:  The NDRB is authorized to consider post-service factors in the recharacterization of a discharge.  Outstanding post-service conduct, to the extent such matters provide a basis for a more thorough understanding of the Applicant’s performance and conduct during the period of service under review, is considered during Board reviews.  Documentation to support a post-service conduct upgrade includes, but is not limited to: a verifiable continuous employment record; marriage and children’s birth certificates (if applicable); character witness statements; documentation of community or church service; certification of non-involvement with civil authorities; evidence of financial stability or letters of good standing from banks, credit card companies, or other financial institutions; attendance at or completion of higher education (official transcripts); and documentation of a drug-free lifestyle.   The Applicant is advised that completion of these items alone does not guarantee the upgrade of an unfavorable discharge, as each discharge is reviewed by the Board on a case-by-case basis to determine if post-service accomplishments help demonstrate  in-service misconduct was an aberration and not indicative of the member’s overall character.

Issues Concerning Bad-Conduct Discharges (BCD): Because relevant and material facts stated in a court-martial specification are presumed by the NDRB to be established facts, issues relating to the Applicant’s innocence of charges for which he was found guilty cannot form a basis for relief.  With respect to a discharge adjudged by a special court-martial, the action of the NDRB is restricted to upgrades based on clemency.  Clemency is an act of leniency that reduces the severity of the punishment imposed.  The NDRB does not have the jurisdictional authority to review a discharge or dismissal resulting from a general court-martial.

Board Membership:  The names and votes of the members of the NDRB Board are recorded on the original of this document and may be obtained from the service records by writing to:

Secretary of the Navy Council of Review Boards
Attn:  Naval Discharge Review Board
720 Kennon Street SE Rm 309
Washington Navy Yard DC  20374-5023

Key:	NFIR - Not found in record 	RESTR - Restriction	NJP - Nonjudicial punishment	SCM - Summary court-martial
	SPCM - Special court-martial	FOP - Forfeiture of pay	RIR - Reduction in rank	EPD - Extra duties
	CONF - Confinement	CC - Civilian conviction	CCU - Correctional Custody Unit	CBW - Confinement on bread and water

Key:	NFIR - Not Found In Record 	UA – Unauthorized absence	NJP – Nonjudicial punishment	SCM – Summary court-martial	
	SPCM – Special court-martial	FOP – Forfeiture of pay	RIR – Reduction in rank	EPD – Extra Duties 
	CONF – Confinement		B&W – Confinement on bread and water