ex-LCPL, USMC
MD06-01123

Current Discharge and Applicant’s Request:

Application Received:  				20060816
Characterization of Service:			UNDER 
Narrative Reason for Separation:			MISCONDUCT DUE TO 
Discharge Authority:				MARCORSEPMAN PAR 6210.6
Last Duty Assignment/Command at Discharge:	1STBN 11THMAR 1st mardiv CAMPEN CA 

Applicant’s Request:	
	Characterization change to:		
	Narrative Reason 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  MISCONDUCT DUE TO COMMISSION OF A SERIOUS                                                                                                					              OFFENSE 	                                                                                                                                                                                                                                                          

Applicant’s Issues, as summarized by the Board:
1.  Receive Veteran’s Administration benefits.  
2.  Discharge was inequitable because the civilian charge was expunged from my record.  
3.  Post service.

Summary of Service:

Prior Service:
Inactive: USMCR (DEP)				19881130-19890213 

Period of Service Under Review:
Date of Enlistment:  				19890214
Years Contracted:  				;   Extension:   
Date of Discharge:				19930611
Length of Service
	Active:					04  Yrs  03  Mths  28  Dys  (Does not exclude lost time)
Time Lost During This Period:			141 
	
Education Level:  				
Age at this Enlistment:  				18
AFQT:  						37
MOS:						2531
Highest Rank:					LCPL

Proficiency/Conduct marks (# of occasions):		4.3 (12)/4.2 (12)

Awards and Decorations (as listed on the DD Form 214):
SEA SERVICE DEPLOYMENT RIBBON, NATIONAL DEFENSE SERVICE MEDAL, COMBAT ACTION RIBBON, NAVY UNIT COMMENDATION, KUWAIT LIBERATION MEDAL, SOUTHWEST ASIA SERVICE MEDAL (W/2 STARS), MERITORIOUS MAST 

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

19900224:	NJP for violation(s) of UCMJ:
	Article 134: Did on or about 19900110 make and utter to Marine Corps West Federal Credit Union certain checks in figures as follow, to wit: $2,314.00 for the purchase of article and the procurement of lawful currency, and did thereafter dishonorably fail to maintain sufficient funds in the MCW Federal Credit Union for payment of checks in full upon presentment for payment.
	Award:  Forfeiture of $362.00 for 2 months (suspended for 6 months), restriction for 45 days (suspended for 6 months), extra duty for 45 days, reduction to E-1.
	Not appealed.

19920319:	LCpl H_’ son, A. M. H_, JR. was taken to Menifee Hospital, Riverside, CA for bleeding from the mouth and breathing problems.  Applicant stated that child had fallen from the couch and cut his mouth and nose.  Child was released from hospital but returned later that day where he expired.

19920323:	LCpl H_ was interviewed by Riverside County Sheriff Department and related same story.

19920326:	Applicant returned to Riverside County Sheriff Department and changed story.  Claimed that he had flick the child in the mouth to get him to stop crying.  Coroner initially could not confirm that this was the cause of death.  Applicant released.  Coroner’s report subsequently showed baby died from chemical reaction caused by blood in the lung.

19930127:	LCpl H_ was taken into custody by Riverside County Sheriff Department and charged with murder.

Elements of Discharge:  [INVOLUNTARY]

Discharge Process:				
Date Notified:					19930310
Basis for Discharge:				 DUE TO 

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

Date Applicant Responded to Notification:		NOT FOUND IN RECORD
Rights Elected at Notification:
Consult with Counsel				NOT FOUND IN RECORD
Obtain Copies	  				NOT FOUND IN RECORD
Submit Statement(s) (date)				NOT FOUND IN RECORD  
Administrative Board				

Commanding Officer Recommendation (date):	UNDER OTHER THAN HONORABLE CONDITIONS (19930315)
SJA review (date):				  (19930513)
Separation Authority (date):			COMMANDING GENERAL 1ST MARDIV (19930524)
Narrative Reason directed:				MISCONDUCT DUE TO 
Characterization directed:				
Date Applicant Discharged:			19930611

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:				1     
	Other Period of Service:				0     
       Related to Post-Service Period:
	Community Service:				0     
	Education:					1     
	Employment:					0     
	Health/Medical:					0     
	Character Statements:				0     
	Criminal Records Checks:				0     
	Additional Statements from Applicant:		1     
        Other Documentation (Describe Below)			1     

        Total Number of Pages:				4     

       Description of Other Documentation:
       	Court Order dated June 23, 2004,      

Applicant’s Issues, as summarized by the Board:
1.  Receive Veteran’s Administration benefits.  
2.  Discharge was inequitable because the civilian charge was expunged from my record.  
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).  A Marine may be separated for a commission of a serious military or civilian offense when the specific circumstances of the offense warrant separation.  A military or civilian conviction is not required for discharge under this provision.  Additionally, 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 the award of nonjudicial punishments (NJP) for one violation of the Uniform Code of Military Justice (UCMJ), Article 134, Making and uttering worthless checks.  A violation of UCMJ Article 134 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 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 one document of educational pursuits and one legal letter from the State of California.  The Applicant's efforts need to be more encompassing.  For example, the Applicant could have produced evidence of 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.  The Marine Corps Separation and Retirement Manual, (MCO P1900.16D), effective 27 Jun 1989 – 17 Aug 1995, 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 violations of the UCMJ, Article 134, Making and uttering worthless checks. 
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