ex-PVT, USMC
MD06-01191

Current Discharge and Applicant’s Request:

Application Received:  				20060914
Characterization of Service:			UNDER OTHER THAN HONORABLE CONDITIONS
Narrative Reason for Separation:			PATTERN OF MISCONDUCT
Discharge Authority:				MARCORSEPMAN 6210.3
Last Duty Assignment/Command at Discharge:	ATBn 4th MEB CAMP LEJEUNE, NC

Applicant’s Request:	
	Narrative Reason change to: 		NONE REQUESTED
Characterization change to:		HONORABLE
	Review Requested:			
Representation:  				FLORIDA DEPT OF VETERANS AFFAIRS

Decision:

Date of Decision:					20070628
Location of Board:				Washington D.C.
Complete Service Record:				YES
Complete Medical Record:			YES
Complete Discharge Package:			NO
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

Summary of Service:

Prior Service:
Inactive: USMCR (DEP)				20010612 – 20020603 
Active:   		               		

Period of Service Under Review:
Date of Enlistment:  				20020604
Years Contracted:  				4;   Extension:   
Date of Discharge:				20051122
Length of Service:		                             3 YRS  05 MOS  19 DAYS  (Does not exclude lost time)
Time Lost During This Period:			8
UA:  						8 	 
	
Education Level:  				12
Age at this Enlistment:  				19
AFQT:  						52
MOS:						3051
Highest Rank:					PFC

Proficiency/Conduct marks (# of occasions):		NOT FOUND IN RECORD 

Awards and Decorations (as listed on the DD Form 214):
GLOBAL WAR ON TERRORISM SERVICE MEDAL, GLOBAL WAR ON TERRORISM EXPEDITIONARY MEDAL, SEA SERVICE DEPLOYMENT MEDAL, NATIONAL DEFENSE SERVICE MEDAL, MARKSMAN RIFLE QUALIFICATION

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

20010109:	Applicant signed Marine Corps policy concerning illegal use drugs.

20030103:	Counseling:  Advised of deficiencies in performance and conduct.  Poor judgment and failure to follow rules and regulations.  Specifically accessing unauthorized web sites on government computers.  Warned that he may be discharged under one of two categories: Minor disciplinary actions and/or Pattern of misconduct.  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

20040318:	NJP for violation(s) of UCMJ:
	Article 86:  UA on or about 0830 on 20040312 failed to go appointed place of duty.
	Article 92:  Failure to obey order or regulation.  On 20040314 refused to compose a TMI.
	Article 92:  Failure to obey order or regulation.  Violated FSSG Computer Use agreement in that he used his PC for personal use, specifically unauthorized e-mails.
	Award:  Forfeiture of $328.00 for 1 month, restriction and extra duty for 14 days.
                              Forfeiture is suspended for 3 months.  
	Not appealed.

20040908:	To unauthorized absence status.

20040916:	From unauthorized absence status.

20040921:	Counseling:  Advised of deficiencies in performance and conduct.  Violations of UCMJ Article 86 on 20040908 and Article 92 on 20040818.  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

20040924:	NJP for violation(s) of UCMJ:	
                              Article 86:  1730, 20040908, failed to show for post Labor Day formation..
                              Article 92:  1708, 20040818, retained for driving on base while on base revocation.  
                              Award:  Forfeiture of $668.00 for 2 month(s), restriction and extra duty for 45 days, reduction to E-1.  Forfeiture is suspended for 6 months.  
	Not appealed.

20040924:	Vacation of forfeiture awarded at NJP on 20040924.

20050225:	Counseling:  Advised of deficiencies in performance and conduct.  Violations of UCMJ Article 86, 2 counts failing to report to work and to the barracks on time, Article 92 failure to obey an order about drinking alcohol 8 hours prior to duty, Article 112a wrongful use of a controlled substance, and Article 121, larceny.  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

20050307:	NJP for violation(s) of UCMJ:	
                              Article 86:  20050126, failed to be at appointed place of duty.  
	Article 86:  20050225, failed to be at the barracks at appointed time of duty.  
                              Article 92:  Drank alcoholic beverages 8 hours prior to duty.
	Article 112a:  Wrongful use of controlled substance (cannabinoids) on 20050126.
	Article 121:  Larceny and wrongful appropriation of cigarettes from Base exchange on 20050223.  
                              Award:  Forfeiture of $617.00 for 2 month(s), restriction and extra duty for 45 days, reduction to E-1.  Forfeiture is suspended for 6 months.  
	Not appealed.

Elements of Discharge:  [INVOLUNTARY]

Discharge Process:				
Date Notified:					NOT FOUND IN RECORD
Narrative Reason(s):				NOT FOUND IN RECORD
Least Favorable Characterization:			NOT FOUND IN RECORD
Commanding Officer’s Intended Recommendation:	NOT FOUND IN RECORD
Record Supports Narrative Reason:			NOT FOUND IN RECORD 

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

Commanding Officer Recommendation (date):	NOT FOUND IN RECORD
SJA review (date):				NOT FOUND IN RECORD
Discharge directed by (date):	NOT FOUND IN RECORD
Narrative Reason directed:				NOT FOUND IN RECORD
Characterization directed:				NOT FOUND IN RECORD
Date Applicant Discharged:			NOT FOUND IN RECORD

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

        Total Number of Pages:				 2	

Applicant’s Issues, as summarized by the Board:
1.  Unfairly discharged from the Marine Corps.
	
Decisional Issues:
The Board accepted Issue 1 for consideration.

Issue 1 (Equity).  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 three retention warnings and three nonjudicial punishments (NJP) for violations of the Uniform Code of Military Justice (UCMJ), Articles 86, 92, 112a, and 121.  Violations of UCMJ Articles 92, 112a, and 121 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 01 Sep 2001 until 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 92, Failure to obey an order, Article 112a, Wrongful use of a controlled substance, and Article 121, Larceny.

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