ex-, USMC
MD06-01125

Current Discharge and Applicant’s Request:

Application Received:  				20060822
Characterization of Service:			
Narrative Reason for Separation:			
Discharge Authority:				MARCORSEPMAN 6210.3
Last Duty Assignment/Command at Discharge:	8THESB 2DFSSG USMARFORLANT

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

Decision:

Date of Decision:					20070712     
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:	PROPER
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  

Applicant’s Issues, as summarized by the Board:
1.  Veteran’s Administration benefits.
2.  Reenlistment opportunity.
3.  Immaturity and personal problems during enlistment.

Summary of Service:

Prior Service:
Inactive: USMCR (DEP)				19980617 - 19990608		

Period of Service Under Review:
Date of Enlistment:  				19990609
Years Contracted:  				
Date of Discharge:				20020829
Length of Service
	Active:					03  Yrs  02  Mths  21  Dys  (Does not exclude lost time)
Time Lost During This Period:			61
Days UA:  					61 
	
Education Level:  				
Age at this Enlistment:  				
AFQT:  						39
MOS:						1391
Highest Rank:					

Proficiency/Conduct marks (# of occasions):		4.1 (8)/3.3 (9)

Awards and Decorations (as listed on the DD Form 214):	RIFLE SHARPSHOOTER, NATIONAL DEFENSE SERVICE MEDAL

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

19991119:	Counseling:  Advised of deficiencies in performance and conduct.  Violation of losing ID Card.  Necessary corrective actions explained, sources of assistance provided.

20000908:	Counseling:  Advised of deficiencies in performance and conduct.  Being dropped from the rifle range for repeatedly being late to training.  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

20001030:	NJP for violation(s) of UCMJ:
	Article 92:  On or about 20000914 disobey BO P5560.22K by driving 50 mph in a 25 mph zone and on 20001016 did operate a motor vehicle with a NC and OH state suspended license.
	Award:  Forfeiture of $263.00 for 1 month, restriction and extra duty for 14 days.  Forfeiture suspended for 6 months.
	Not appealed.

20010131:	Counseling:  Advised of deficiencies in performance and conduct.  Substantiated mutual spouse and child abuse (Level III) on 20010125 based on a preponderance of clinical and investigative information.  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

20010202:	Counseling:  Advised of deficiencies in performance and conduct.  Violation of the UCMJ, specifically Articles 86 and 92.  You were UA on 20010131 from 0500 to 0620.  You had your base driving privileges revoked for an indefinite period on 20000525.  In spite of this you continued to drive.  Your actions were not what is expected of Marine.  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

20010301:	Applicant to unauthorized absence 0730.

20010402:	Applicant declared a deserter.

20010501:	Applicant from unauthorized absence 0800 (surrendered).

20010806:	NJP for violation(s) of UCMJ:
	Article 86:  UA (AWOL) from 0730, 20010301 to 0123, 20010502,
	Award:  Forfeiture of $584.00 for 2 months, extra duty for 45 days.  Forfeiture and extra duty suspended for 6 months.
	Not appealed.

20020321:	Applicant was assessed for the fourth spouse incident.  Applicant seemed to minimize the incident during the assessment.  Applicant minimized, rationalized and justified reasons for missing 12 scheduled interventions to include three Core Group FAP FU sessions/marital sessions, Anger Management (20020315) and stress management classes (20020301) and four sessions of relationship skills group sessions despite clinician’s discussion with S_ during last incident regarding consideration of his case as a treatment failure due to lack of follow through on recommendations in two prior incidences and total of five cases.
	Based on all of this, the clinician and this case manager concur that the applicant’s case is determined to be a treatment failure, which will be recommended to the Spouse CRC on 20020508.  As a result, applicant should be considered for an administrative separation.

20020508:	Command notification of Spouse Abuse Case Review Committee findings/recommendations:
	Findings:  Substantiated spouse abuse - Level III - against applicant to S_ O_ (FM/W) based on a preponderance of clinical and investigative information.
	Recommendations:  ATF evaluation and follow all treatment recommendations.
	Previous treatment recommendations suspended due to applicant’s lack of commitment to treatment process and determination as a treatment failure by CRB on 20020508.

20020529:	Notification of case closure.  The Family Advocacy Program Case Review Committee met and determined that the spouse and child cases pertaining to applicant and Mrs. J_ O_ are closed, unresolved.

20020725:	NJP for violation(s) of UCMJ:
	Article 86:  Unauthorized absence during the period 0700, 20020530 through 0700, 20020531.
	Article 92:  Failed to carry out the required treatment plan for his spouse/child abuse cases, resulting in being considered a treatment failure on or about 20020508.
	Article 128:  Struck his wife with his hand that resulted in a chipped tooth and discoloration of her face on 20011005.
	Award:  Forfeiture of $619.00 for 2 months, restriction and extra duty for 45 days, reduction to E-1.  Forfeiture and extra duty for 45 days suspended for 6 months.
	Not appealed.

20020730:	Applicant evaluated on 20020711 as a result of a command referral.   The diagnosis was confirmed by a credentialed provider on 20020729
	Diagnosis:
	Alcohol dependence.
	Recommendations:
	Intensive outpatient treatment.
	Individual should be held accountable for his actions.
	Weekly visits with Unit SACO until treatment.
	Individual is nondeployable.

Elements of Discharge:  [INVOLUNTARY]

Date Notified:					20020725
Basis for Discharge:	 DUE TO 

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

Date Applicant Responded to Notification:		20020725
Rights Elected at Notification:
Consult with Counsel				
Obtain Copies	  				
Submit Statement(s) (date)				
Administrative Board				WAIVED 

Commanding Officer Recommendation (date):	UNDER OTHER THAN HONORABLE CONDITIONS (20020808)
SJA review (date):				  (20020814)
Separation Authority (date):	COMMANDING GENERAL, 2D FORCE SERVICE SUPPORT GROUP (20020816)
Narrative Reason directed:				MISCONDUCT DUE TO A 
Characterization directed:				
Date Applicant Discharged:			20020829

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:		2
        Other Documentation (Describe Below)			0

        Total Number of Pages:				4

Applicant’s Issues, as summarized by the Board:
1.  Veteran’s Administration benefits.
2.  Reenlistment opportunity.
3.  Immaturity and personal problems during enlistment.

Issues 1-2:  The Board determined that these Issues are 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 Issue 3 for consideration.   

Issue 3 (Equity). The Applicant contends that his problems are 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.  There is credible evidence in the record that the Applicant had a pattern of misconduct.  The evidence of record does not demonstrate that the Applicant was 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 the award of  three retention warnings, documented incidents of spouse abuse, three nonjudicial punishments (NJP) for violations of the Uniform Code of Military Justice (UCMJ) Articles 86 and Article 92.  Violations of UCMJ Article 86 (over thirty days) and Article 92, are considered serious offenses 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
  
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 1 September 2001 – 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 violations of the UCMJ, Article 86, Unauthorized absence, more than 30 days, and Article 92, Failure to obey order, regulation. 

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