ex-, USMC
MD06-00993

Current Discharge and Applicant’s Request:

Application Received:  				20060718
Characterization of Service:			
Narrative Reason for Separation:	misconduct-pattern of misconduct (ADMINISTRATIVE DISCHARGE BOARD REQUIRED BUT WAIVED)
Discharge Authority:				MARCORSEPMAN 6210.3
Last Duty Assignment/Command at Discharge:	HQSVCBN FMFPAC CAMp SMitH HI

Applicant’s Request:	
	Characterization change to:		
	Narrative Reason change to: 		
	Review Requested:			
Representation:  					

Decision:

Date of Decision:					20070628     
Location of Board:				Washington D.C.
Complete Service Record:				
Complete Medical Record:			
Complete Discharge Package:			

Regarding propriety, the Board found the discharge:	
Regarding equity, the Board found the discharge:	

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

Summary of Service:

Prior Service:
Inactive: USMCR (DEP)				19891124 - 19891204		
Active:   

Period of Service Under Review:
Date of Enlistment:  				19891205
Years Contracted:  				
Date of Discharge:				19940105
Length of Service
	Active:					04  Yrs  01  Mths  01  Dys  (Does not exclude lost time)
	Inactive:					00  Yrs  00  Mths  00  Dys  

Time Lost During This Period:			Days UA:  None 	 Days Confinement:  116
	
Education Level:  				
Age at this Enlistment:  				
AFQT:  						53
MOS:						3051
Highest Rank:					

Proficiency/Conduct marks (# of occasions):		4.2 (11)/3.4 (11)

Fitness reports available for review?		 

Awards and Decorations (as listed on the DD Form 214) RIFLE SHARPSHOOTER BADGE, (2) LETTERS OF APPRECIATION, NATIONAL DEFENSE SERVICE MEDAL

Service Record Entries Related to Characterization of Service or Narrative Reason for Separation

19910125:	NJP for violation(s) of UCMJ:
	Article 91 (2 specifications):
	Specification 1:  On or about 2345, 1990831, was disrespectful in language toward Cpl H_.
	Specification 2:  On or about 2345, 19900831, was disrespectful in language to Cpl A_ .
	Article 92 (2 specifications):
	Specification 1:  On or about 2345, 19900831, fail to obey a lawful order from Sgt A_ to pick up a beer bottle.
	Specification 2:  On or about 2345, 19900831, fail to obey a lawful order by consuming alcoholic beverages while under the lawful age of 21.
	Article 134 (2 specifications):
	Specification 1:  On or about 2345, 19900831, unlawfully enter Room 201, Barracks 402.
	Specification 2:  On or about 2345, 19900831, drunk and disorderly.
	Award:  Forfeiture of $200.00 for 2 months, extra duty for 45 days, reduction to E-1.  Reduction suspended for 6 months.
	Not appealed.

19910128:	Counseling:  Advised of deficiencies in performance and conduct (My alcohol related incident on 19900831, specifically for consuming alcoholic beverages while under the legal age of 21 and being drunk and disorderly.), necessary corrective actions explained, sources of assistance provided.

19910222:	Applicant assigned to LEVEL II Alcohol Rehabilitation Program.

19910301:	Applicant successfully completed LEVEL II, 40 hours of alcohol education.

19910401:	Vacate suspended reduction.

19910925:	Applicant to confinement at Naval Brig, Pearl Harbor, Hawaii

19911118:	Special. Court-Martial:
	Charge I:  Violation of the UCMJ, Article 91:
	Specification 1:  On 19910329, assaulted Sergeant P_ D. B_ by striking him on the face with his fingers.  Plea:  Not Guilty.  Findings:  Not Guilty
	Specification 2:  On 19910329, did willfully disobey a lawful order from Sergeant P_ D. B_ to leave the second deck and go to his room.  Plea:  Not Guilty.  Findings:  Guilty.
	Specification 3:  On 19910329, was disrespectful in language towards Corporal B_ L. F_ .  Plea:  Not Guilty.  Findings:  Not Guilty.
	Specification 4:  On 19910704, assaulted Staff Sergeant J_ L. F_ by striking her on the face with his closed fist.  Plea:  Not Guilty.  Findings:  Guilty.
	Specification 5:  On 19910704 was disrespectful in language toward Staff Sergeant J_ L. F_.  Plea:  Not Guilty.  Findings:  Guilty.
	Charge II:  Violation of the UCMJ, Article 92:
	Specification 1:  On 19910329, violated a lawful general order by wrongfully consuming alcohol.  Plea:  Not Guilty.  Findings:  Guilty.
	Specification 2:  On 19910704, violated a lawful general order by wrongfully consuming alcohol.  Plea:  Not Guilty.  Findings:  Not Guilty.
	Charge III: Violation of the UCMJ, Article 128:
	Specification 1:  On 19910704, assaulted Staff Sergeant J_ L. F_ by unlawfully striking her in the face with his closed fist.  Plea:  Not Guilty.  Findings:  Dismissed.
	Specification 2:  On 19910921, unlawfully strike Lance Corporal M_ A. W_ on the face with his fist.  Plea:  Not Guilty.  Findings:  Guilty.
	Charge IV:  Violation of the UCMJ, Article 134:
	Specification 1: On 1991029, committed an indecent assault upon Lance Corporal J_ L. S_, a person not his wife, by putting his hand on her buttocks and then reaching for her vaginal area, with intent to gratify his sexual desires.  Plea: Not Guilty.  Findings: Not Guilty.
	Specification 2: On 1991029, was drunk and disorderly.  Plea: Not  Guilty.  Findings: Guilty.
	Specification 3:  On 19910704, was drunk and disorderly.  Plea:  Not Guilty.  Findings:  Not Guilty
	Specification 4:  On 19910921, willfully and wrongfully exposed in an indecent manner to public view his penis, by urinating off balcony.  Plea:  Not Guilty.  Findings:  Not Guilty
	Sentence: Forfeiture of $500.00 per month for 6 months, confinement for 6 months.
	CA action 19920113:  Sentence approved and ordered executed.

19920116:	Counseling:  Advised of deficiencies in performance and conduct (Your misconduct which resulted in nonjudicial punishment on 19910125; specifically, disrespect toward a superior NCO, disobedience of a lawful order, underage drinking, unlawful entry into a barracks room, and drunk and disorderly conduct.  Subsequent misconduct resulted in a SPCM on 1991118; specifically, disobedience of a lawful order, assault, disrespectful language, underage drinking, and drunk and disorderly conduct.), necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

19920119:	Applicant from confinement.

19931025:	Counseling:  Advised of deficiencies in performance and conduct (Use of government vehicle for personal use.), necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

19931202:	Counseling:  Advised of deficiencies in performance and conduct (Disrespectful conduct towards a SNCO by using abusive language.), necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

Medical Record Entries Related to Characterization of Service or Narrative Reason for Separation

NONE

Elements of Discharge:  [INVOLUNTARY]

Discharge Process:				
Date Notified:					19931025
Basis for Discharge:	  due to:  

Least Favorable Characterization:			
Commanding Officer’s Intended Recommendation:	
Record Supports Narrative Reason:			

Date Applicant Responded to Notification:		19931027
Rights Elected at Notification:
Consult with Counsel				
Obtain Copies	  				
Submit Statement(s) (date)				
Administrative Board				

Commanding Officer Recommendation (date):	 (19931207)
SJA review (date):				 (19931214)
Separation Authority (date):			COMMANDER, MARINE FORCES PACIFIC (19931215)
Narrative Reason directed:				
Characterization directed:				
Date Applicant Discharged:			19940105

Additional Information Considered by Board

Type of documentation submitted by the Applicant and considered by the Board
       
       	Document Type					#Pages
       Related to Period of Service Under Review:
	Service/Medical Record:				2
	Other Period of Service:				0
       Related to Post-Service Period:
	Community Service:				0
	Education:					0
	Employment:					0
	Health/Medical:					0
	Character Statements:				0
	Criminal Records Checks:				0
	Additional Statements from Applicant:		0
        Other Documentation (Describe Below)			0

        Total Number of Pages:				2
 Applicant’s Issues as Summarized by the Board:

1.  Isolated incident.
2.  Behavior not relevant to overall service.

Decisional Issues:
     
Issue 1  () and Issue 2 ().  When the service of a member of the U.S. Marine Corps has been honest and faithful, it is appropriate to characterize that service as honorable.  An under other than honorable conditions is warranted when 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 3 retention warnings and nonjudicial punishment proceedings for violations of Articles 91 (2 specs, 92 (2 specs) and 134 (2 specs) of the UCMJ.  In addition, the Applicant was found guilty by special court-martial of violating UMCJ Articles 91 (3 specs), 92, 128, and 134 (2 specs).  Each of these violations is considered a serious offense for which a punitive discharge is authorized if adjudged by a special or general court martial.  The Applicant’s conduct, which forms the primary basis for determining the character of his service, reflects his willful failure to meet the requirements of his contract with the U.S. Navy and falls far short of that required for an upgrade of his characterization of service.  Relief is not warranted

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.  After a thorough review of the available evidence, to include the Applicant’s Summary of Service, Service Record Entries, Medical Record Entries, Elements of Discharge and evidence submitted by the Applicant, the Board found the Applicant’s discharge proper and equitable

Minority Opinion

None

Pertinent Regulation/Law

A.  Paragraph 6210, Misconduct, of the Marine Corps Separation and Retirement Manual, (MCO P1900.16D), effective 
27 June 1989 until 17 August 1995.

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 s 91 (Striking or assaulting superior noncommissioned officer and willfully disobey noncommissioned officer), 92 (Failure to obey order, regulation), 128 (Assault, consummated by battery), and 134 (Unlawful entry).

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.  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.

Employmen/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