ex-PVT, USMC
MD06-01000

Current Discharge and Applicant’s Request:

Application Received:  				20060718
Narrative Reason for Separation:	ENTRY LEVEL PERFORMANCE AND CONDUCT 
Character of Service:				
Discharge Authority:				MARCORSEPMAN 6205
Last Duty Assignment/Command at Discharge:	1STRTBn mcrdep san diego ca

Applicant’s Request:
	Narrative Reason change to: 		NONE REQUESTED
	Characterization change to:		
	Review Requested:			
Representation:  					

Decision:

Date of Decision:					20070608
Vote (characterization/reason)			/ 	
Location of Board:				Washington D.C.
Complete Service Record:				
Complete Medical Record:			
Discharge Package Complete:			

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

By a vote of 5-0 the Characterization shall remain UNCHARACTERIZED.	
By a vote of 5-0 the Narrative Reason shall remain ENTRY LEVEL PERFORMANCE AND CONDUCT.

Summary of Service:

Prior Service:
Inactive: USMCR (DEP)				20001206 - 20010311	COG
Active:   NONE		               		     
Period of Service Under Review:
Date of Enlistment:  				20010312
Years Contracted:  				; NO EXTENSION
Date of Discharge:				20010426
Length of Service:				00  Yrs  01  Mos  15  Days
Time Lost During This Period:			      
						        
			
Education Level:  				
Age at this Enlistment:  				
AFQT:  						57
MOS:						9900
Highest Rate/Rank:				PVT

Performance Evaluation Averages (number of marks):
Proficiency / Conduct:				NOT APPLICABLE 
	Extracted from:  SJA   Supporting Documents   Other:       
Fitness reports were available to the board for review for service as E-5/Sergeant or higher:  NOT APPLICABLE 

Awards and Decorations (as listed on the DD Form 214):
NONE

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

20010409:	NJP for violation(s) of UCMJ:
	Article 90: On or about 1100 on 20010409, refused to train.
	Award:  Forfeiture of $225 for 1 month, restriction and extra duty for 14 days.  Restriction and extra duty suspended for 6 months.
	Not appealed.

20010417:	Counseling:  SNR (Applicant) Advised of deficiencies in performance and conduct (His ELS from the United States Marine Corps due to ELPAC.  On 20010408 SNR stated to his SDI that he refused to train.  SNR was counseled by Capt J_ and agreed to return to training.  On 20010409 SNR again refused to train.  SNR was counseled by his chain of command but still refused to return to training.  On 20010411 SNR was awarded NJP and recommended for ELS.  SNR understands the circumstances under which he is being separated from the United States Marine Corps.  SNR has not been verbally or physically abused while assigned to First Recruit Training Battalion.  SNR has no unreported personal or medical problems. )

20010423:	Retention Warning:  Advised of deficiency (Inability to adapt to military environment.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

Elements of Discharge:  [INVOLUNTARY]

Discharge Process:				
Date Notified:					20010423
Narrative Reason(s):				ENTRY LEVEL PERFORMANCE AND CONDUCT

Least Favorable Characterization:			
Commanding Officer’s Intended Recommendation:	
Record Supports Narrative Reason:			
Date Applicant Responded to Notification:		20010423
Rights Elected at Notification:
Consult with Counsel			
Administrative Board			
Obtain Copies	  			
Submit Statement(s)			

Recommendation of Commanding Officer (date):	ENTRY LEVEL (20010419)
SJA review (date):				       
Discharge directed by (date):			CG, MCRD SAN DIEGO CA (20010425)
Narrative reason directed:				ENTRY LEVEL PERFORMANCE AND CONDUCT
Characterization of directed:			UNCHARACTERIZED
Date Applicant Discharged:			20010426 

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:
	Service/Medical Record:				4
	Other Period of Service:				0
       Related to Post-Service Period:
	Community Service:				0
	Education:					4
	Employment:					0
	Health/Medical:					0
	Character Statements:				0
	Criminal Records Checks:				0
	Additional Statements from Applicant:		0
        Other Documentation	 (Describe Below)		2

        Total Number of Pages:				10

       Description of Other Documentation:
       Congressional Casework authorization form, dated March 21, 2006
       Letter from K_ C_, Member of Congress to Naval Council of Personnel Boards, dated June 30, 2006

Applicant’s Issues, as summarized by the Board:
1.  Current discharge is preventing him from moving on in both his personal and military careers. 
2.  The record is unjust because of a mistake that was made when he was 19 years old, immature and impulsive.

Issue 1:  The Board determined that  which can form the basis of relief for the Applicant or that the Board did not have the authority to grant the relief for which the Applicant petitioned.  The Applicant is directed to the Addendum regarding this Issue.  

Decisional Issues:
The Board accepted Issue 2 for consideration.  

Issue 2 (Equity).  The Applicant contends that is discharge is unfair because it is the result of his impulsive behavior and immaturity when he was 19 years old.  While he may feel that youth and immaturity were the underlying causes of his misconduct, the record clearly reflects his willful misconduct and demonstrated that he was unfit for further service.   The evidence of the 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.  Relief denied.

By regulation, members notified of intended recommendation for discharge within the first 180 days of enlistment are eligible for an uncharacterized or entry-level separation characterization of service unless there were unusual circumstances regarding a servicemember’s performance or conduct that merit another characterization.  An under other than honorable conditions or general (under honorable conditions) discharge 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 nonjudicial punishment for violation of UMCJ Article 90 (willfully disobeying lawful order of superior commissioned officer).  Violation of UMCJ Article 90 is considered a serious offense for which a punitive discharge is authorized if adjudged by a special or general court-martial.   In the Applicant’s case, the Separation Authority, CG MCRD SD, concurred with the recommendation of the Commanding Officer, Support Battalion, MCRD SD, and the Applicant was discharged with a characterization of Uncharacterized.  Relief is not warranted.

The Applicant should be aware that, with respect to nonservice-related administrative matters, i.e., VA benefits, educational pursuits, and especially civilian employment, an uncharacterized separation is considered the equivalent of an honorable or general (under honorable conditions) discharge.

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.  The Marine Corps Separation and Retirement Manual, (MCO P1900.16E, effective 950818 until 010831), paragraph 6205, ENTRY LEVEL PERFORMANCE AND CONDUCT.

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 90 (willfully disobeying lawful order of superior commissioned officer).

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.

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