ex-LCPL, USMC
MD06-01106

Current Discharge and Applicant’s Request:

Application Received:  				20060815
Narrative Reason for Separation:			
Character of Service:				
Discharge Authority:				MARCORSEPMAN 6419
Last Duty Assignment/Command at Discharge:	1st marine corps district

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

Decision:

Date of Decision:					20070706
Location of Board:				Washington D.C.
Complete Service Record:				YES
Complete Medical Record:			YES
Complete Discharge Package:			YES
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  IN LIEU OF TRIAL BY COURT-MARTIAL                                                                                                                                                                                                                                                          

Applicant’s Issues, as summarized by the Board:
1.  Change reenlistment code.
2.  Poor decision making caused the event.  
3.  Post service.

Summary of Service:

Prior Service:
Inactive: USMCR (DEP)				19961112 - 19970504 
Active:   USMC					19970505 - 20001109 
	USMC					20001110 - 20040226 HON
Period of Service Under Review:
Date of Enlistment:  				20040227
Years Contracted:  				;        
Date of Discharge:				20050708
Length of Service:				01  Yrs  04  Mos  12  Days
Time Lost During This Period:			

Education Level:  				
Age at this Enlistment:  				
AFQT:  						49
MOS:						3381
Highest Rate/Rank:				SGT

Fitness reports were available to the board for review for service as E-5/Sergeant or higher:   

Awards and Decorations (as listed on the DD Form 214):
MARINE CORPS GOOD CONDUCT MEDAL (2ND AWD), SEA SERVICE DEPLOYMENT RIBBON, GLOBAL WAR ON TERRORISM SERVICE MEDAL, NATIONAL DEFENSE SERVICE MEDAL, NAVY MERITORIOUS UNIT COMMENDATION (2ND AWD), MERITORIOUS MAST (3RD AWD), LETTER OF APPRECIATION (5TH AWD), CERTIFICATE OF COMMENDATION, MARKSMANSHIP RIFLE BADGE

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

20050216:	Charges preferred for violation of the Uniform Code of Military Justice (UCMJ) Article 81:  Between May 2002 and June 2004, conspired to commit an offense under the Uniform Code of Military Justice, Article 84 (4 specifications): 
                              Specification 1:  On or about 20020522 effect the enlistment of N_ Z_.  
                              Specification 2:  On or about 20040130 effect the enlistment of C_ C_.  
                              Specification 3:  On or about 20040225, effect the enlistment of M_ M. Z_.  
                              Specification 4:  On or about 20040629, effect the enlistment of E_ A. M_.  
                              Article 92 (3 specifications):  
                              Specification 1:  During May 2002, fail to obey a lawful written order by wrongfully having E_ A. A_ take the Armed Services Vocational Aptitude Battery while using the identity of N_ Z_.  
                              Specification 2:  On or about 20040604, fail to obey a lawful written order by wrongfully having M_ S. P_ take the Armed Services Vocational Aptitude Battery while using the identity of M_ M. Z_.  
                              Specification 3: On or about 20040604, fail to obey a lawful written order by wrongfully having C_ T. B_ take the Armed Services Vocational Aptitude Battery while using the identity of E_ A. M_.

20050320:	Charges referred to special court-martial.

Elements of Discharge:  [REQUESTED BY MEMBER]

Discharge Process:		REQUEST FOR SEPARATION IN LIEU OF TRIAL BY COURT-MARTIAL
Date Member Requested Separation:			20050511
Member Requested Separation Due To:			
Characterization Requested:				
member Recognized Least Favorable:			
Recommendation of Commanding Officer (date):		NONE FOUND IN RECORD
SJA review (date):					  (20050621)
Discharge directed by (date):				20050621
Narrative reason directed:					
Characterization directed:					
Date Applicant discharged:				20050708

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.  Change reenlistment code.
2.  Poor decision making caused the event.  
3.  Post service.

Issue 1:  The Board determined that this Issue is not an issue 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 2-3 for consideration.   

Issue 2 (Equity).  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 conduct during the current period of service, which forms the primary basis for determining the character of his service was marred by a pending trial by court martial for violations of the Uniform Code of Military Justice (UCMJ) Articles 81 and 84.  Violation of UCMJ Article 81, Conspiracy and Article 84, Effecting unlawful enlistment are considered  serious offenses for which a punitive discharge is authorized if adjudged by a Special or General Courts Martial.  Marines may be separated upon their request in lieu of trial by special or general courts-martial if charges have been preferred with respect to an offense for which a punitive discharge is authorized and it has been determined that the Marine is unqualified for future military service.  The Applicant, after consultation with Defense Council, willfully signed the request.  A change of Characterization of Service would be inappropriate.  Relief denied. 

Issue 3 (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, good conduct, or favorable endorsements 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 no documentation of post-service accomplishments.  The Applicant's efforts need to be more encompassing.  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 circumstances 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.  Paragraph 6419, SEPARATION IN LIEU OF TRIAL BY COURT-MARTIAL, of the Marine Corps Separation and Retirement Manual, (MCO P1900.16F), 30 May 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 81, Conspiracy and Article 84, Effecting unlawful enlistment.  

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