Title: DEPARTMENT OF THE NAVY
Author: CAP
Last saved by: Sanabria, Armando M CIV SECNAVCORB, CORB
Company: NCPB

Docket No. MD15-00964

ex-PFC, USMC

Current Discharge and Applicant’s Request

Application Received:  20150407
Characterization of Service Received:  (per DD 214) GENERAL (UNDER HONORABLE CONDITIONS)
Narrative Reason for Discharge:  (per DD 214) MISCONDUCT 
Reenlistment Code:  RE-4
Authority for Discharge:  (per DD 214) MARCORSEPMAN 6210.6 [COMMISSION OF A SERIOUS OFFENSE]

Applicant’s Request:	Characterization change to: HONORABLE
	Narrative Reason change to: NONE REQUESTED
	Reentry Code change to:  RE-2

Summary of Service

Prior Service:
Inactive:	USMCR (DEP)	20060926 - 20061126  COG	Active:	USAF  19990512 - 19990602  ELS

Period of Service Under Review:
Date of Current Enlistment:  20061127	Age at Enlistment:  27
Period of Enlistment:  5 Years  0 Months
Date of Discharge:  20100210	Highest Rank:  LANCE CORPORAL
Length of Service:  03  Year(s)  02  Month(s)  15  Day(s)
Education Level:  15	AFQT:  69
MOS:  6113
Proficiency/Conduct Marks (# of occasions):  4.1 (NFIR) / 4.0 (NFIR)	Fitness Reports:  NOT APPLICABLE

Awards and Decorations (per DD 214):	Rifle MM NDSM GWOTSM LOA (4) 

Periods of CONF:  NONE

TL Per DD214:  20090414 -20091008, 178 days

NJP:  2

- 20081230:	Article 86 (Absence without leave);  failed to report to morning formation at 0615 on 20081205.
	Awarded: RESTR EPD  Suspended:  NONE 

- 20090205:	Article 86 (Absence without leave); failed to report for a civil court appearance on 20090204.
	Article 92 (Failure to obey order or regulation); failed to obey a lawful order by drinking alcohol while on restriction and failing to notify the SDO promptly of a DUI arrest on 20090203.
	Article 134 (General article - discredit to the Marine Corps.)
	Awarded: FOP RIR  Suspended:  NONE 

SCM:  NONE

SPCM:  NONE

CIVIL ARREST:  1

- 20090203:	Charges:  Driving Under the Influence

CC:  1

- 20090414:	Offense:  hit and run resulting in injury [Extracted from Notification of Separation Proceedings dated 20090728]
	Sentence:  180 days confinement county jail [Extracted from summary of local criminal history sent in by the Applicant]  

Retention Warning Counseling:  2

- 20081230:	For Article 86 (Absence without leave)

- 20090205:	For Article 86 (Absence without leave), Article 92 (Failure to obey an order or regulation), and Article 134 (General article –discredit to the Marine Corps)

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:	☐

Types of Witnesses Who Testified

	Expert:	☐	Character:	☐

Pertinent Regulation/Law

A.  Paragraph 6210, MISCONDUCT of the Marine Corps Separation and Retirement Manual, (MCO P1900.16E), effective 1 September 2001 until Present.

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.

C.  The Manual for Courts-Martial authorizes the award of a punitive discharge if adjudged as part of the sentence upon conviction by a special or general court-martial for violation of the UCMJ, Article 92, and 111.  

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

Applicant’s Issues

1.	The Applicant requests an Upgrade to Honorable and his RE code change to RE-2 so that he can continue his service with the Army National Guard.
2.    The Applicant suggests that he would like an upgrade to be able to use his G. I. Bill benefits.
3.    The Applicant contends that his charges and received punishment at both of his NJPs were based on nonfactual information.
4.    The Applicant contends that his civilian case has since been dismissed and he would like to continue his education and or service.  

Decision

Date:  20150625	DOCUMENTARY REVIEW	Location: Washington D.C.	 Representation: NONE

By a vote of 5-0 the Characterization shall remain GENERAL (UNDER HONORABLE CONDITIONS).
By a vote of 5-0 the Narrative Reason shall remain MISCONDUCT.
By a vote of 5-0 the Reenlistment Code shall remain RE-4.

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 his discharge and the discharge process to ensure his discharge met the pertinent standards of equity and propriety.  The Applicant’s record of service included two 6105 counseling warnings, two nonjudicial punishments (NJPs) for violations of the Uniform Code of Military Justice (UCMJ):  Article 86 (Absence without leave, 2 specifications), Article 92 (Failure to obey an order or regulation, 1 specification), and Article 134 (General article – discredit to the Marine Corps, 1 specification); and one civilian conviction for hit and run resulting in injury.  Based on the offense(s) committed by the Applicant, his command administratively processed him for separation.  When notified of administrative separation processing using the administrative board procedure, the Applicant exercised his rights to consult with a qualified counsel, submit a written statement, and request an administrative board.  On 20091222, the Administrative Board found by majority vote that the preponderance of the evidence supported misconduct due to commission of a serious offense; that the Applicant should be separated; and that his characterization of service should be General (Under Honorable Conditions).  The Separating Authority approved the Administrative Board’s recommendation to separate the Applicant as recommended and separated the Applicant with a General (Under Honorable Conditions) discharge.

Issue 1:  (Nondecisional) The Applicant requests an Upgrade to Honorable and his RE code change to RE-2 so that he can continue his service with the Army National Guard.  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.

Issue 2:  (Nondecisional)  The Applicant suggests that he would like an upgrade to be able to use his G. I. Bill benefits.  The NDRB has no authority to upgrade a discharge for the sole purpose of enhancing educational opportunities.  Regulations limit the NDRB’s review to a determination of the propriety and equity of the discharge.

Issue 3:  (Decisional) (Propriety)  RELIEF NOT WARRANTED.  The Applicant contends that his charges and received punishment at both of his NJPs were based on nonfactual information.  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.  There is no evidence in the record, nor has the Applicant produced any evidence, to support the contention that the command used nonfactual information at his NJPs.  If the Applicant felt that he was being taken to NJP based on nonfactual information, the Applicant could have elected to have his charges adjudicated at court-martial where rules of evidence applies.  The Applicant did not elect to go to a court-martial and a preponderance of the evidence found him guilty at two separate NJPs.  Furthermore, even after the finding of guilt at NJP, the Applicant could have appealed this judgment in writing if he felt the finding of guilt or the punishment was unfair.  After an exhaustive review of the record, the NDRB found that the Applicant adjudications at NJP were conducted properly and none of his rights were violated.  Relief denied.

Issue 4:  (Decisional) (Propriety/Equity)  RELIEF NOT WARRANTED.   The Applicant contends that his civilian case has since been dismissed and he would like to continue his education and or service.  The Applicant submitted documentation showing that his case has been dismissed as of 20110218.  As previously stated in Issue 2, the NDRB has no authority to upgrade a discharge for the sole purpose of enhancing educational opportunities.  As for the Applicant contention that his civilian case has since been dismissed, this solely does not act in mitigation or extenuation to the discharge of the member from the Marine Corps.  The Applicant was discharged due to commission of a serious offense and not due to a civilian conviction.  The MARCORSEPMAN 6210.6 [COMMISSION OF A SERIOUS OFFENSE] states that a Marine may be processed for separation for the commission of a serious military or civilian offense if the specific circumstances of the offense warrant separation; and a punitive discharge would be authorized for the same or a closely related offense under the UCMJ.  It further states that a military or civilian conviction is not required for discharge under this provision.  The Applicant was found guilty of Article 92 (Failure to obey an order or regulation) and Article 111 (Drunken or reckless operation of vehicle, aircraft, or vessel), both of which can lead to a punitive discharge.  When notified that the command intended to separate him, the Applicant elected to contest the charges with qualified legal counsel at an administrative separation board.   On 20091222, the Administrative Board found by majority vote that the preponderance of the evidence supported misconduct due to commission of a serious offense; that the Applicant should be separated; and that his characterization of service should be General (Under Honorable Conditions).  The Separating Authority approved the Administrative Board’s recommendation to separate the Applicant as recommended and separated the Applicant with a General (Under Honorable Conditions) discharge.  The NDRB found that the discharge was proper and equitable and the post-service documentation is not sufficient for relief.  Relief denied.  

Summary:  After a thorough review of the available evidence, to include the Applicant’s summary of service, service record entries, and discharge process, the Board found the discharge was proper and equitable. Therefore, the awarded characterization of service shall remain GENERAL (UNDER HONORABLE CONDITIONS) and the narrative reason for separation shall remain MISCONDUCT.  The Applicant remains eligible for a personal appearance hearing for a period of fifteen years from the date of his 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, or http://www.secnav.navy.mil/mra/bcnr/Pages/default.aspx 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:  Effective 6 February 2015, the NDRB is authorized to change a NDRB Applicant’s Reenlistment Code if related to an accompanying change in discharge characterization or narrative, but this authority is strictly limited to those cases where an applicant’s narrative reason or characterization of discharge is changed and that change warrants revision of the previously issued reenlistment code.  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