ex-, USMC
MD06-00876

Current Discharge and Applicant’s Request

Application Received:  20060614 		Characterization Received:  
Narrative Reason:  MISCONDUCT 					    Authority:  MARCORSEPMAN 6210.3

Applicant’s Request:	Characterization change to:  
			Narrative Reason change to: 
Applicant’s Issues:	1. Did not commit misconduct subsequent to counseling warning.
			2. Characterization not warranted by overall service record.
			3. Misconduct was due to family problems and alcohol overindulgence.
			4. Post-service conduct. 

Decision

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

Date:  20071108		Location:  Washington D.C.	 Representation:  

Discussion

Issue 1 ().  The Applicant was processed for discharge on the basis of misconduct due to a pattern of misconduct.  The Board found that there was sufficient documented misconduct in the Applicant’s record— a summary court-martial and 2 nonjudicial punishments (NJP)—to meet the definition of a pattern of misconduct.  The Board found that the Applicant was counseled, per regulations, after his second NJP on 19981020.  However, the Board found no evidence in the record that the Applicant continued to engage in misconduct between the time he was counseled in October 1998 and when he was notified in March 1999 of the intended recommendation for administrative separation.  Paragraph 6105 of the Marine Corps Separations Manual requires that in cases involving pattern of misconduct separation processing may not be initiated until the Marine is counseled concerning deficiencies and afforded a reasonable opportunity to overcome those deficiencies.  While there is no requirement for subsequent imposition of NJP or other administrative or judicial actions as a prerequisite for separation proceedings, there must be some evidence in the administrative separation proceeding indicating the Marine has not overcome the noted deficiencies.  The Board found no evidence in the proceedings satisfying this requirement.  The Board specifically noted that the record appeared complete on its face; that there was no subsequent service record entry of further misconduct; that both the Notification to the Applicant and the Commanding Officer’s recommendation to the Separation Authority explicitly based the recommendation for discharge on specific enumerated events each of which occurred prior to the counseling; and that the Commanding Officer offered no statement, assessment, or opinion to indicate that the Applicant had not overcome his deficiencies.  The Board found this error to be prejudicial to the Applicant.  As no other basis for discharge accurately described the reason the Applicant was discharge, the Board changed the reason to Secretarial Authority.

Issue 2 ().  When a Marine’s service meets acceptable levels of performance and conduct, it is appropriate to characterize that service as honorable.  Characterization of service as general (under honorable conditions) is warranted when it has been honest and faithful, but significant negative aspects of a member's conduct or performance of duty outweigh the positive aspects of the member's military record.  The Applicant’s service was marred by the award of NJP on 2 occasions and a summary court-martial for violations of the Uniform Code of Military Justice (UCMJ).  The Applicant’s misconduct included unauthorized absence on 3 occasions, incapacitation for the performance of duty, violation of a lawful general order, disrespect towards a staff noncommissioned officer and provoking language towards a staff noncommissioned officer.  Most of the Applicant’s varied offenses are considered serious offenses under the UCMJ for which a punitive discharge is authorized if adjudged by a Special or General Courts Martial.  The Applicant’s conduct markings, which form the primary basis for determining the character of his service, reflect his misconduct, and fall below that required for an honorable characterization of service.  The Board specifically determined that the Applicant, had he not been discharged for a pattern of misconduct but instead been separated at EAS with characterization of service based on service markings, could have received a characterization of service as general (under honorable conditions).  An upgrade to honorable would be inappropriate.

Issue 3 ().  The Applicant contends that his misconduct can be attributed to his family problems and alcohol overindulgence.  While these factors may have been the reason why the Applicant committed his misconduct, the evidence of record did not show that the Applicant was either not responsible for his conduct or that he should not be held accountable for his actions.  The NDRB recognizes that serving in the U.S. Marine Corps is challenging.  Our country is fortunate to have men and women willing to endure the hardships and sacrifices required in order to serve their country.  It must be noted that most Marines serve honorably and therefore earn their honorable discharges.  In fairness to those Marines, commanders and separation authorities are tasked to ensure that undeserving Marines receive no higher characterization than is due.  The NDRB found that the Applicant's service was equitably characterized.  

Issue 4 ().  There is no law or regulation which provides that an unfavorable discharge may be upgraded based solely on the passage of time or good conduct in civilian life subsequent to leaving the service.  The NDRB is authorized to consider outstanding post-service factors in the recharacterization of a discharge to the extent that such matters provide a basis for a more thorough understanding of the Applicant’s performance and conduct during the period of service under review.  After a complete review of the entire record, including the evidence submitted by the Applicant, the Board determined that the discharge characterization was appropriate and that the evidence of post-service conduct was found not to mitigate the conduct which precipitated it.

In reviewing discharges, the Board presumes regularity in the conduct of Government affairs unless there is substantial credible evidence to rebut the presumption, to include evidence submitted by the Applicant.  In this case, the Board found substantial credible evidence to rebut the presumption that the Applicant met the administrative requirements for a discharge on the basis of misconduct due to a pattern of misconduct.  For that reason, after a thorough review of the available evidence, to include the Applicant’s Summary of Service, Medical and Service Record Entries, Discharge Process and evidence submitted by the Applicant, the Board found that   

Summary of Service

Prior Service:
Inactive: USMCR (DEP)	19941230 - 19950319  		Active:   	
Period of Service Under Review:
Date of Enlistment: 19950320		Years Contracted:  ; Extension:  	Date of Discharge:  19990312
Length of Service:  03  Yrs  11  Mths  23  Dys	Lost Time:  Days UA:  91	 Days Confined:  8
Education Level:  	Age at Enlistment:  	AFQT:  61	MOS:  2311  Highest Rank:  
Proficiency/Conduct marks (# of occasions):	4.2(10)/3.2(12)		Awards and Decorations (per DD 214):  National Defense Service Medal, Sea Service Deployment Ribbon, Rifle Expert Badge (2d/Awd), Letter of Appreciation

Medical/Service Record Entries Related to Characterization of Service or Basis for Discharge

19971118:	SCM – Viol UCMJ Art 86 (2 specs) – Unauthorized absence 19970805-19971004 and 199700609-19970710.
	Awarded – FOP ($553.00) for (1 month); RIR (E-2); Confinement (10 days).

19980320:	Medical Record:  Reason for visit:  Fitness for duty exam, admits to drinking 12-pack of 6-0z beers.
	Diagnosis:  Not competent to perform duties.
	Recommendation:  Since it is not known the exact amount of alcohol consumed and being that the patient’s current occupation is government driver, it is in the best interest of his and others’ safety that he be found “not fit for duty.”

19980619:	NJP – Viol UCMJ Art 112 – drunk on duty 19980320; Art 134 – incapacitated for duty 19980320.
	Awarded – FOP ($519.00) for (1 month), susp 3 months; RIR (E-2).  Appeal denied 19980820.

19980930:	Medical Record:  Reason for visit:  Headaches for 1 month since stopping ETOH abuse.
	Diagnosis:  Headache due to ETOH withdrawal.
	Recommendation:  Push fluids, proper diet, Tylenol, keep SACO appointment on 19981001.

19981020:	NJP – Viol UCMJ Art 86 – absent from appointed place of duty 19980730; Art 92 – violate order (female in barracks) 19980826; Art 91 – disrespect towards SNCO 19980826; Art 117 – provoking language towards SNCO 19980826.
	Awarded – FOP ($227.00) for (1 month); Restr for (14 days); Extra Duties (14 days).

19981020:	MARCORSEPMAN 6105 counseling for NJP of 19981015 (sic) and pattern of misconduct.

Discharge Process

Date Notified:	19990305
Basis for Discharge:	 DUE TO 
Least Favorable Characterization:	
Commanding Officer’s Intended Recommendation:	

Date Applicant Responded to Notification:		19990305
Rights Elected at Notification:
	Consult with Counsel			
	Obtain Copies of Documents		
	Submit Statement(s) (date)			  
	Administrative Board			

Commanding Officer Recommendation (date):	 (19990305)
SJA review (date):	 (19990305)
Separation Authority (date):	CG, 2D FORCE SERVICE SUPPORT GROUP (19990308)
              Basis for discharge directed:	 DUE TO 
              Characterization directed:	
Date Applicant Discharged:	19990312

Types of Documents Submitted by Applicant and Considered By Board

Related to Military Service:	Service and/or Medical Record:  		Other Records:  

Related to Post-Service Period:  	
	Employment:  			Finances:  			Education: 		
	Health/Medical Records:  		Substance Abuse:			Criminal Records:  	
	Family/Personal Status: 		Community Service:  		References:  		
Additional Statements From Applicant:  	From Representative:    	Other Documentation (Describe)       

Pertinent Regulation/Law

A.  Marine Corps Separation and Retirement Manual (MCO P1900.16E), Paragraph 6210, MISCONDUCT, effective 31 Jan 97 until 31 Aug 01.

B.  Marine Corps Separation and Retirement Manual (MCO P1900.16E), Paragraph 6105, COUNSELING AND REHABILITATION, effective 31 Jan 97 until 31 Aug 01.

C.  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.

ADDENDUM:  Information for the Applicant

Complaint Procedures:  If you believe that 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:  Subsequent to a document review, former members are eligible for a personal appearance hearing, provided the application is received at the NDRB within 15 years from the 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.  If a former member has been discharged for more than 15 years, has already been granted a personal appearance hearing or has otherwise exhausted his opportunities before the NDRB, the Applicant may petition the Board for Correction of Naval Records (BCNR), 2 Navy Annex, Washington, DC 20370-5100 for further review.

Service Benefits:  The Veterans Administration determines eligibility for post-service benefits, not the Naval Discharge Review Board.  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 Board has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities.  Regulations limit the Board’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 Board for Correction of Naval Records (BCNR) can make changes to reenlistment codes.  Additionally, the Board 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 subsequently is processed for an administrative involuntary separation for misconduct, the disability evaluation is suspended.  The Physical Evaluation Board case remains in suspense pending the outcome of the non-disability proceedings.  If the action includes either a punitive or administrative discharge for misconduct, 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 “PTSD.”  Only the Board for Correction of Naval Records can grant this type of narrative reason change.  

Automatic Upgrades - There is no law or regulation, which provides that an unfavorable discharge may be upgraded based solely on the passage of time or good conduct in civilian life subsequent to leaving Naval service.  The NDRB is authorized to consider post-service factors in the recharacterization of a discharge 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.  Examples of documentation that may be provided to the Board include proof of educational pursuits, verifiable employment records, documentation of community service, credible evidence of a substance free lifestyle and certification of non-involvement with civil authorities.  

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 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.  

Board Membership:  The names and votes of the members of the 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