ex-, USMC
MD06-01131

Current Discharge and Applicant’s Request:

Application Received:  				20060822
Characterization of Service:			
Narrative Reason for Separation:		aDMINISTRATIVE SEPARATION DUE TO PATTERN OF MISCONDUCT
Discharge Authority:				MARCORSEPMAN 1005
Last Duty Assignment/Command at Discharge:	MCDET FT HUACHUCA, AZ

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

Decision:

Date of Decision:					2007071219
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 5-0 the Characterization shall remain UNDER OTHER THAN HONORABLE CONDITIONS	
By a vote of 5-0 the Narrative Reason shall remain MISCONDUCT

Applicant’s Issues, as summarized by the Board:
1.  Reenlistment opportunity.
2.  Record of service.  
3.  Impropriety of administrative proceedings.

Summary of Service:

Prior Service:
Inactive: USMCR (DEP)				19990528 - 19990906 
Active:   					19990907 - 20021002 HON

Period of Service Under Review:
Date of Enlistment:  				20021003
Years Contracted:  				;   Extension:   
Date of Discharge:				20050923
Length of Service
	Active:					02  Yrs  11  Mths  20  Dys  (Does not exclude lost time)

Time Lost During This Period:			  

Education Level:  				
Age at this Enlistment:  				21
AFQT:  						39
MOS:						0121
Highest Rank:					

Proficiency/Conduct marks (# of occasions):		4.6 (14)/4.5 (14)

Fitness reports available for review?		NONE FOUND IN RECORD 

Awards and Decorations (as listed on the DD Form 214):  MARINE CORPS GOOD CONDUCT MEDAL, GLOBAL WAR ON TERRORISM SERVICE MEDAL, NATIONAL DEFENSE SERVICE MEDAL, CERTIFICATE OF COMMENDATION, CERTIFICATE OF APPRECIATION

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

20030709:	Counseling:  Advised of deficiencies in performance and conduct.  Violation of Article 92, Dereliction of duty, failing to ensure that Marines under the age of 21 were not consuming alcohol while in his presence and using poor judgment on 20030702.  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

20031001:	NJP for violation of UCMJ:
	Article 92:
	Specification:  In that SNM, did aboard Ft. Huachuca, AZ, on or about 20030927, failed to obey lawful written order, to wit:  par 7a, MCDet Order 5354 dated 20030710, by fraternizing with a Navy Student.
	Article 111:
  	Specification:  In that SNM was driving  recklessly in the La Hacienda parking lot aboard Ft. Huachuca, AZ, on or about 20030927.
                             Award:  Forfeiture of $764.00 for 1 month, restriction and extra duty for 60 days (suspended for 4 months) reduction to E-3 (suspended for 4 months).
	Not appealed.

20031001:	Counseling:  Advised of deficiencies in performance and conduct.  Violation of 92, disobeying a written order by fraternizing with a Navy student on 20030927, and violation of article 111, reckless driving aboard Ft. Huachuca, AZ on 20030927.  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

20050329:	NJP for violation of UCMJ:
	Article 92 (2 Specs):  Failure to obey order or regulation.
	Specification 1:  In that Sgt W_ (Applicant), having knowledge of a lawful order issued by the Commanding General of Training Command to wit:  Training Command General Order 01-03, orders which it was his duty to obey, on or about 20050113, fail to obey the orders by having an unprofessional relationship with a known student, LCpl M_ B_ until on or about 20050520.
	Specification 2:  In that Sgt W_ (Applicant), having knowledge of a lawful order issued by the Commanding Officer MCDet Ft. Huachuca, AZ to wit:  MCDetO 5324, orders which it was his duty to obey, on or about 20050113, fail to obey the orders by having an unprofessional relationship with a known student, LCpl M_ B_ until on or about 20050520.
	Award:  Forfeiture of $480.00 per month for 1 month, restriction (suspended) and extra duty for 14 days.
	Not appealed.

Elements of Discharge:  [INVOLUNTARY]

Date Notified:					20050405
Basis for Discharge:				  DUE TO 

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

Date Applicant Responded to Notification:		20050405
Rights Elected at Notification:
Consult with Counsel				
Obtain Copies	  				
Submit Statement(s) (date)				
Administrative Board				

Administrative Board Date:			20050805
	Findings, by preponderance of the evidence:	BY MAJORITY VOTE:  DUE TO A PATTERN OF							MISCONDUCT
						BY MAJORITY VOTE: SEPARATION IS WARRANTED
	Recommendation on Separation: 		BY MAJORITY VOTE:       
Recommendation on Characterization:		BY MAJORITY VOTE:    

Commanding Officer Recommendation (date):	GENERAL (UNDER HONORABLE CONDITIONS) (20050329)
SJA review (date):				NOT FOUND IN RECORD
Separation Authority (date):			COMMANDING GENERAL, TRAINING COMMAND (20050909)
Narrative Reason directed:				MISCONDUCT DUE TO A 
Characterization directed:				
Date Applicant Discharged:			20050923

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:				3
	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:				5

Applicant’s Issues, as summarized by the Board:
1.  Reenlistment opportunity.
2.  Record of service.  
3.  Impropriety of administrative proceedings.

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 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 two  retention warnings and two nonjudicial punishments (NJP) for violations of the Uniform Code of Military Justice (UCMJ), Articles 92 and 111.  Violations of UCMJ Articles 92 and 111 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. 

Issue 3 (Equity).  The Applicant implies that he was treated unfairly by his Unit.  The government enjoys a presumption of regularity in the conduct of its affairs.  The Applicant bears the burden of overcoming this presumption through the presentation of substantial and credible evidence to support his issue.  There is no evidence in the record, nor has the Applicant produced any evidence, to support the contention that he was wrongfully charged and disciplined.  The Applicant’s statements alone do not overcome the government’s presumption of regularity in this case.  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 6210, Misconduct, of the Marine Corps Separation and Retirement Manual, (MCO P1900.16F), effective 
1 September 2001 – 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 violations of the UCMJ, Article 92, Failure to obey order, regulation and Article 111.   

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