ex-LCPL, USMC
MD06-01164

Current Discharge and Applicant’s Request:

Application Received:  				20060901     
Characterization of Service:			
Narrative Reason for Separation:			
Discharge Authority:				MARCORSEPMAN PAR 6210.6
Last Duty Assignment/Command at Discharge:	RTR, MCRD SAN DIEGO CA

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

Applicant’s issues:
1.  Veteran’s Administration benefits.
2.  Educational Benefits.
3.  Employment opportunities.
4.  Unfair discharge characterization due to record of service.
5.  Post service.

Decision:

By a vote of  the Characterization shall  GENERAL (UNDER HONORABLE CONDITIONS)
By a vote of  the Narrative Reason shall  MISCONDUCT  

Date of Decision:					20070802
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

Issues 1-3:  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. 

Issue 4 (Equity).  When a Marine’s service has been honest and faithful, it is appropriate to characterize that service under honorable conditions.  A general (under 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.  Despite a Marine’s prior record of service, certain serious offenses, even though isolated, warrant separation from the Naval service in order to maintain proper order and discipline. The Applicant’s service was marred by a guilty finding and sentence at a Special Court-Martial.  Violations of the Uniform Code of Military Justice (UCMJ), Articles 92, 107, and 128 are considered a 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.   

Issue 5 (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 Board determined that the documentation provided by the Applicant did not mitigate the misconduct that resulted in the characterization of discharge.  

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.

Corrections to the Applicant’s DD 214
The NDRB did note administrative error(s) on the original DD Form 214.  Block 13, Decorations, Medals, Badges should contain GOOD CONDUCT MEDAL.  Block 18, Remarks, should contain the following statement:  “CONTINUOUS HONORABLE ACTIVE DUTY FROM 19990706 UNTIL 20030130.”  The Commandant, Headquarters USMC, Quantico, VA, will be notified, recommending the DD Form 214 be corrected or reissued, as appropriate.

Summary of Service:

Prior Service:
Inactive: USMCR (DEP)				19980710-19990705 
Active:   		               		19990706-20030130 HON		

Period of Service Under Review:
Date of Enlistment:  				20030131     
Years Contracted:  				;   Extension:   
Date of Discharge:				20050216
Length of Service
	Active:					02  Yrs  00  Mths  16  Dys  (Does not exclude lost time)

Time Lost During This Period:			38
Days UA:  					NONE
Days Confinement:  				38
	
Education Level:  				
Age at this Enlistment:  				
AFQT:  						66
MOS:						2531
Highest Rank:					

Fitness reports available for review?		 

Awards and Decorations (as listed on the DD Form 214):	COMBAT ACTION RIBBON, NAVY AND MARINE CORPS ACHIEVEMENT MEDAL, GLOBAL WAR ON TERRORISM SERVICE MEDAL, GLOBAL WAR ON TERRORISM EXPEDITIONARY MEDAL, NATIONAL DEFENSE SERVICE MEDAL, SEA SERVICE DEPLOYMENT RIBBON, PRESIDENTIAL UNIT CITATION, CERTIFICATE OF COMMENDATION (2ND AWARD), LETTER OF APPRECIATION, RIFLE SHARPSHOOTER BADGE, PISTOL MARKSMAN BADGE,  

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

20040819:	Special Court-Martial.
	Charge I: Violation of the UCMJ, Article 92.
	Specification: On divers occasions on or about between 20040515 and 20040523, violate a general order , to wit: Depot Order P1510.30L, paragraph 12005.6(b)(8), dated 20020430, by wrongfully conducting incentive training in a gear locker. Plea: Guilty.  Finding: Guilty.
.	Charge II: Violation of the UCMJ, Article 93 (8 specifications). 
	Specification 1: Did on or about 20040523, maltreat Private A_ M. O_, a person subject to his order, by kicking the said in the arm with his leg, kicking the said in the ribs with his foot, kicking the said in the face with his foot, hitting the said in the side of the head with a campaign cover. Plea: Not Guilty.  Finding: Withdrawn*.
	Specification 2: Did on or about 20040519, maltreat Private C_ S. T_, a person subject to his order, by choking the said with his hand, by knocking the said onto a rack, by punching the said in the head with his fist, by pushing the said in the back with his hand, by knocking the said to the ground with his arm, by pushing the said repeatedly into the wall causing the said to hit head and back. Plea: Not Guilty.  Finding: Withdrawn *.
	Specification 3: Did on or about between 20040515 and 20040523, maltreat Private J_ C. A_, a person subject to his order, by kicking the said in the chest with his foot and making the said due squats on a footlocker with a carpet role on his shoulders. Plea: Not Guilty.  Finding: Withdrawn *.
	Specification 4: Did on or about between  20040515 and 20040523, maltreat Private L_ J. H_, by ordering him to perform incentive training in a gear locker. Plea: Not Guilty.  Finding: Withdrawn *.
	Specification 5: Did on or about between  20040515 and 20040523, maltreat Private J_ E. S_, by ordering him to perform incentive training in a gear locker. Plea: Not Guilty.  Finding: Withdrawn *. 
	Specification 6: Did on or about between  20040515 and 20040523, maltreat Private D_ F. S_, by ordering him to perform incentive training in a gear locker Plea: Not Guilty.  Finding: Withdrawn *.
	Specification 7: Did on or about between  20040515 and 20040523, maltreat Private D_ M. M_, by ordering him to perform incentive training in a gear locker. Plea: Not Guilty.  Finding: Withdrawn *.
	Specification 8: Did on or about between  20040515 and 20040523, maltreat Private S_ R. S_, by ordering him to perform incentive training in a gear locker. Plea: Not Guilty.  Finding: Withdrawn *.
	Charge III: Violation of the UCMJ, Article 107:
	Specification: Did on or about 20040525, with intent to deceive, make to Captain B_ H. R_, an official statement to wit: that he had never choked, placed in a headlock, thrown to a rack, thrown to the deck, hit in the head, or taken to the gear locker to incentive train Private C_ S. T_, which statement was totally false, and was then known by said to be so false. Plea: Guilty.  Finding: Guilty**.
	Charge IV: Violation of the UCMJ, Article 128 (3 specifications)
	Specification 1: Did on or about 20040523, unlawfully strike Private A_ M. O_, on the arm with his leg, in the ribs with his foot, in the face with his foot, in the head with his campaign cover, and in the head with his arm by placing him in a headlock. Plea: Guilty.  Finding: Guilty.
	Specification 2:  Did on or about 20040519, unlawfully strike Private C_ S. T_, in the throat with his hand, in the head with his fist, in the back with his hand, in the head with his arm, in the chest with his hand. Plea: Guilty.  Finding: Guilty***.
	Specification 3: Did on or about between 20040515 and 20040523, unlawfully strike Private J_ C. A_ in the chest with his foot.  Plea: Not Guilty.  Finding: Guilty.
	*Withdrawn and Dismissed.
	** Guilty, except for the words, “hit in the head”. Of the excepted words, Not Guilty, of the specification as excepted, Guilty.
	***, Guilty, except for the word, “in the head with his fist” Of the excepted words, Not Guilty, of the specification as excepted, Guilty. 
	Sentence: Confinement for 90 days, forfeiture of $700.00 per month for 3 months, reduction to E-3.  45 days confinement suspended for 12 months.

20040819:	Confined to Camp Pendleton Base Brig.

20041108:	Applicant’s request for a general (under honorable conditions) discharge in lieu of electing an administrative discharge board.  

Elements of Discharge:  [INVOLUNTARY]

Date Notified:					20040923
Basis for Discharge:				 DUE TO 
			
Least Favorable Characterization:			
Commanding Officer’s Intended Recommendation:	
Record Supports Narrative Reason:			YES

Date Applicant Responded to Notification:		20040923
Rights Elected at Notification:
Consult with Counsel				
Obtain Copies	  				
Submit Statement(s) (date)				
Administrative Board				ELECTED 

Commanding Officer Recommendation (date):	  (20041130)
SJA review (date):				  (20041213)
Separation Authority (date):			COMMANDING GENERAL, MCRD SAN DIEGO (20050120)
Narrative Reason directed:				MISCONDUCT DUE TO 
Characterization directed:				 (UNDER HONORABLE CONDITIONS)
Date Applicant Discharged:			20050216

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:				25
	Other Period of Service:				     
       Related to Post-Service Period:
	Community Service:				     
	Education:					11     
	Employment:					3
	Health/Medical:					     
	Character Statements:				4
	Criminal Records Checks:				3     
	Additional Statements from Applicant:		5     
        Other Documentation (Describe Below)			4     

        Total Number of Pages:				55

       Description of Other Documentation:
       	Letter of Recommendation from J_ R. L_, dtd September 22, 2006
	Certificates as State of California Notary Public (3 pages)

Pertinent Regulation/Law

A.  Paragraph 6210, MISCONDUCT of the Marine Corps Separation and Retirement Manual, (MCO P1900.16F), effective 01 September 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 92, 107, and 128.

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