ex-PVT, USMCR
MD06-01077

Current Discharge and Applicant’s Request:

Application Received:  				20060808
Narrative Reason for Separation:			MISCONDUCT
Character of Service:				OTHER THAN HONORABLE
Discharge Authority:				MARCORSEPMAN PAR 6210.6
Last Duty Assignment/Command at Discharge:	SACO SOI TRNGCMD CAMLEJ NC

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

Decision:

Date of Decision:					20070628
Location of Board:				Washington D.C.
Complete Service Record:				YES
Complete Medical Record:			YES
Complete Discharge Package:			NO
Regarding propriety, the Board found the discharge:	
Regarding equity, the Board found the discharge:	EQUITABLE

By a vote of  the Characterization shall  UNDER OTHER THAN HONORABLE CONDITIONS 
By a vote of  the Narrative Reason shall  MISCONDUCT                                                                                                                                                                                                                                                         

Summary of Service:

Prior Service:
Inactive: USMCR (DEP)				*20001024-200111126 COG
Active:        		               		NONE
Period of Service Under Review:
Date of Enlistment:  				*20011126     
Years Contracted:  				8;        
Date of Discharge:				20020208     
Length of Service:				*01 Yrs  07  Mos  19  Days
Time Lost During This Period:			178
Days Unauthorized Absence:			148     
Days Confinement:				30     

Education Level:  				
Age at this Enlistment:  				
AFQT:  						37
MOS:						9900
Highest Rate/Rank:				PFC

Performance Evaluation Averages (number of marks):
Proficiency:					3.6 (3)
Conduct:					2.4 (3) 

Awards and Decorations (as listed on the DD Form 214):
RIFLE MARKSMAN BADGE

*THE NDRB NOTED MULTIPLE ERRONEOUS AND CONFLICTING ENTRIES OF DATES IN THE RECORD; NONE OF WHICH ESTABLISH A LEVEL OF CONFIDENCE FOR CORRECTNESS.  

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

20010314:	Counseling:  Advised of deficiencies in performance and conduct.  Your diagnosed physical condition not a disability, (lower back pain) and any resultant or aggravated condition which interferes with the effective performance of your duties.  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

20010315:	To unauthorized absence.

20010412:	From unauthorized absence.

20010502:	Counseling:  Advised of deficiencies in performance and conduct.  Unauthorized absence from SOI, TrngCmd, CamLej from 0800, 20010315 to 0900, 20010412.  Necessary corrective actions explained, sources of assistance provided.

20010515:	NJP for violation(s) of UCMJ:
	Article 86: UA from 20010315 to 20010412.
	Award:  Forfeiture of $521 for 2 months, restriction for 60 days, reduction to E-1.
	Not appealed.

20010518:	To unauthorized absence.

20010617:	Applicant declared a deserter.

20010918:	From unauthorized absence (surrendered).  Deserter status rescinded. 

20011114:	Counseling:  Advised of deficiencies in performance and conduct.  Unauthorized absence from 20010518 to  20010918.  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

20011114:	Summary Court-Martial.
	Charge: Violation of the UCMJ, Article 86.
	Specification: UA from 0700, 20010518 to 1600, 20010918. 
	Finding: Guilty.
	Sentence: Confinement for 30 days, forfeiture of $695.00.
	CA action 20011114:  Sentence approved and ordered executed.

20011114:	To confinement.

20011210:	From confinement.

Elements of Discharge:  [INVOLUNTARY]

Discharge Process:				NOT FOUND IN RECORD
Date Notified:					NOT FOUND IN RECORD
Basis for Discharge:				NOT FOUND IN RECORD

Least Favorable Characterization:			NOT FOUND IN RECORD
Commanding Officer’s Intended Recommendation:	NOT FOUND IN RECORD
Record Supports Narrative Reason:			YES
Date Applicant Responded to Notification:		NOT FOUND IN RECORD
Rights Elected at Notification:
Consult with Counsel			NOT FOUND IN RECORD
Administrative Board			NOT FOUND IN RECORD
Obtain Copies	  			NOT FOUND IN RECORD
Submit Statement(s) (date)			NOT FOUND IN RECORD

Recommendation of Commanding Officer (date):	NOT FOUND IN RECORD
SJA review (date):				NOT FOUND IN RECORD
Discharge directed by (date):			NOT FOUND IN RECORD
Narrative reason directed:				NOT FOUND IN RECORD
Characterization directed:				NOT FOUND IN RECORD
Date Applicant Discharged:			20020208

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:				1     
	Criminal Records Checks:				0     
	Additional Statements from Applicant:		2     
        Other Documentation	 (Describe Below)		0     

        Total Number of Pages:				5     

Applicant’s Issues, as summarized by the Board:
1.  To be able to rejoin the military.
2.  Change reenlistment code.
3.  Unfair discharge characterization because of immaturity at time of offense.
4.  Post service.

Issues 1 and 2:  The Board determined that these Issues were not issues which can form the basis for 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 Issues 3-4 for consideration.

Issue 3 (Equity). The Applicant contends that his problems were attributed to his immaturity.  While he may feel that this was the underlying cause of his misconduct, the record clearly reflects his willful misconduct and demonstrated he was unfit for further service.  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.  When a Marine’s service has been honest and faithful, it is appropriate to characterize that service under honorable conditions.  An under other than 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 two retention warnings, the award of one nonjudicial punishment (NJP), Article 86, and a guilty plea and finding at a Summary Court Martial for Article 86 (over 30 days.  Violation of UCMJ Articles 86 (over 30 days) is considered a serious offense for which a punitive discharge is authorized if adjudged by a Special or General Courts Martial.  An upgrade to honorable would be inappropriate.  Relief denied

Issue 4 (Equity).   The NDRB is authorized to consider post-service factors in the recharacterization of a discharge.  However, 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 the civilian life subsequent to leaving the service.  Normally, to permit relief, a procedural impropriety or inequity must have been found to have existed during the period of enlistment in question.  Outstanding post-service conduct, 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, is considered.  The Applicant provided one character statement and a  career achievements data sheet as documentation of post-service accomplishments.  The Applicant's efforts need to be more encompassing than those provided.  For example, the Applicant could have produced evidence of continuing educational pursuits, a verifiable employment record, documentation of community service, and certification of non-involvement with civil authorities.  The Board determined that the documentation provided by the Applicant did not mitigate the misconduct that resulted in the characterization of discharge.  Relief denied. 
  
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 P1900.16F), effective 01 Sep 2001 until Present, Paragraph 6210, MISCONDUCT.

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 86, Unauthorized absence more than 30 days.

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