FOR
 ex-, USMC
MD06-01190

Current Discharge and Applicant’s Request:

Application Received:  				20060912
Characterization of Service:			
Narrative Reason for Separation:	MISCONDUCT-PATTERN OF MISCONDUCT (ADMIN DISCHARGE BOARD NOT REQUIRED)
Discharge Authority:				MARCORSEPMAN 6210.2
Last Duty Assignment/Command at Discharge:	HQBN 3DMAR 1STMEB MCAS KBAY HI

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

Applicant’s Issues:
1.  Veterans benefits
2.  Unfair characterization based on record of service during Gulf War 

Decision:

By a vote of 5-0 the Characterization shall remain OTHER THAN HONORABLE CONDITIONS.	
By a vote of 5-0 the Narrative Reason shall remain MISCONDUCT.

Date of Decision:					20070809     
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

Issue 1:  The Board does not have the authority to grant the relief for which the Applicant petitioned.  The Applicant is directed to the Addendum regarding obtaining Veteran’s benefits.  

Issue 2 (Equity):  The Applicant stated in his DD Form 293 that he does not have the same views or actions as he did when he was young.  The Applicant’s service record clearly reflects the pattern of misconduct for which he was administratively separated prior to fulfilling his enlistment.  Separation under these conditions generally results in characterization of service as under other than honorable conditions.  Although the Applicant may feel that immaturity was the underlying cause of his misconduct while in the Marine Corps, there is no evidence 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 as 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 period of service was marred by two non-judicial punishments (NJP) for violations of the Uniform Code of Military Justice (UCMJ), Articles 86 and 92, and conviction by a Summary Court-Martial for violation of UCMJ Articles 121 and 130, breaking/entering a barracks room and larceny from a fellow Marine.   Violations of UCMJ Articles 121 and 130 are serious offenses for which a punitive discharge is authorized if adjudged by Special or General Court-Martial.  An upgrade to an honorable discharge would therefore be inappropriate in this case.  
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.

Summary of Service:

Prior Service:
Inactive: USMCR (DEP)				19890303 - 19890424		
Active:   

Period of Service Under Review:
Date of Enlistment:  				19890425
Years Contracted:  				
Date of Discharge:				19910911
Length of Service
	Active:					02  Yrs  04  Mths  17  Dys  (Does not exclude lost time)
	Inactive:					00  Yrs  00  Mths  00  Dys  
Time Lost During This Period:			 
Education Level:  				
Age at this Enlistment:  				
AFQT:  						33
MOS:						0311
Highest Rank:					
Proficiency/Conduct marks (# of occasions):		3.9(7)/3.8(7)

Awards and Decorations (as listed on the DD Form 214):	RIFLE SHARPSHOOTER BADGE, SEA SERVICE DEPLOYMENT RIBBON, NATIONAL DEFENSE SERVICE MEDAL, SOUTHWEST ASIA SERVICE MEDAL, COMBAT ACTION RIBBON

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

19900131:	NJP for violation(s) of UCMJ Art 92:  On 19900130 drinking beer in the barracks.
	Award:  Forf $182.00/1 mon, rest and extra duty for 14 days.  Not appealed.

19900615:	Counseling:  Advised of deficiencies in performance and conduct to wit, frequent involvement with military authorities as demonstrated by 2 recent NJP’s;  disciplinary and discharge warning issued.

19900827:	Summary Court-Martial.
	Charge I: Vio Art 121:  Specification:  Stole three watches, property of PFC B_ on 19900610.
	Charge II:  Vio Art 130: Specification:  Unlawfully entered Room 202, Barracks 1062 on 19900610.
	Finding: Guilty of both.  Sentence: Forf $482.00, restriction 60 days, reduction to E-1.   
	CA action 19900830:  Sentence approved and ordered executed.
19910612:	NJP for violation(s) of Art 86, UCMJ: UA from 0701, 910521 to 1735, 910521.
	Award:  Forf $197.00 for 1 month, rest and extra duty 14 days.  
Suspended: Forf & 7 days rest suspended for 4 months.   Not appealed.

19910612:	Counseling:  Advised of deficiencies in performance and conduct (Failure to follow the rules and regulations as set forth for all Marines.  Your poor attitude and lack of cooperation with in the platoon.), necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

Medical Record Entries Related to Characterization of Service or Narrative Reason for Separation
19901117-19910104:  Inpatient alcohol rehab, Naval Hospital Okinawa.  

Elements of Discharge:  [INVOLUNTARY]

Date Notified:					19910723
Basis for Discharge:	 due to:  
Least Favorable Characterization:			
Commanding Officer’s Intended Recommendation:	
Date Applicant Responded to Notification:		19910813
Rights Elected at Notification:
	Consult with Counsel			
	Obtain Copies of Documents		
	Submit Statement(s) (date)			
	Administrative Board			
Commanding Officer Recommendation (date):	 (19910717)
SJA review (date):				 (19910813)
Separation Authority (date):	COMMANDING GENERAL, 1ST MARINE EXPEDITIONARY BRIGADE (19910820)
Narrative Reason directed:				
Characterization directed:				
Date Applicant Discharged:			19910911

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

Pertinent Regulation/Law

A.  Paragraph 6210, Misconduct, of the Marine Corps Separation and Retirement Manual, (MCO P1900.16D), effective 27 Jun 89 until 17 August 1995.

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, 121, or 130.  

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