ex-PVT, USMC
MD06-01213

Current Discharge and Applicant’s Request:

Application Received:  				20060907
	Characterization of Service:		
	Basis for Discharge:			 
	Discharge Authority:			MARCORSEPMAN PAR 6210.3
	Duty Assignment/Command at Discharge:	MWSS-172 MWSG-17 OKINAWA JAPAN 

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

Applicant’s issues:
1.  Record of service.
2.  Unfair discharge characterization due to two different incidents.
		
Decision:

By a vote of  the Characterization shall  UNDER OTHER THAN HONORABLE CONDITIONS
By a vote of  the Narrative Reason shall  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 (Equity).  When a Marine’s service has been honest and faithful, it is appropriate to characterize that service under honorable conditions.  A 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.  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 one retention warning, one nonjudicial punishment for Article 121, and a guilty finding and sentence at a Special Court-Martial for Article 92.  Violations of the Uniform Code of Military Justice (UCMJ), Articles 92 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.

Issue 2 (Equity).  In order to be administratively discharged due to a pattern of misconduct, a minimum of two incidents occurring within one enlistment is required.  The infractions may be minor or more serious and there must be discreditable involvement with civil or military authorities or conduct prejudicial to good order and discipline.  The misconduct need not have been the subject of NJP or military or civilian conviction and the incidents of misconduct do not have to be of the same nature.  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.    

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)				20020118 - 20020505  
Active:   		              	 		

Period of Service Under Review:
Date of Enlistment:  				20020506
Years Contracted:  				; Extension:   
Date of Discharge:				20051123
Length of Service
	Active:					3  Yrs  6  Mths  9  Dys  (does not exclude lost time)
Time Lost During This Period:			9
Days UA:  					  
Days Confinement:  				9
	
Education Level:  				
Age at this Enlistment:  				
AFQT:  						84
MOS:						0651
Highest Rank:					
Proficiency/Conduct marks (# of occasions):		4.4(8)/3.9(8) 

Awards and Decorations (as listed on the DD Form 214):  SEA SERVICE DEPLOYMENT RIBBON (2), GLOBAL WAR ON TERRORISM SERVICE MEDAL, NATIONAL DEFENSE SERVICE MEDAL, NAVY UNIT COMMENDATION, LETTER OF APPRECIATION, RIFLE MARKSMAN BADGE  

Service Record Entries Related to Characterization of Service or Basis for Discharge

20020108:	Applicant briefed on and certified understanding of Marine Corps policy concerning illegal use of drugs.

20050112:	NJP for violation(s) of UCMJ:
	Article 121: Larceny, on or about 20041002, stole $400.00 cash from the ATM account of CPL W_.
	Award:  Forfeiture of ½ month pay for 2 months, restriction and extra duty for 45 days, reduction to E-2.
	Not appealed.

20050124:	Counseling:  Advised of deficiencies in performance and conduct.  Results of non-judicial punishment.  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

20050721:	Special Court-Martial (trial dates 20050720 & 20050721).
	Charge I: Violation of the UCMJ, Article 92.
	Specification 1: Did between 20050215 and 20050513, violate a lawful general regulation, to wit: SECNAVINST 5300.28C, by wrongfully using a controlled substance analogue, natural substance, chemical, propellant, and/or a prescribed or over the counter drug, or pharmaceutical compound with intent to induce intoxication, excitement, and/or stupefaction of the central nervous system. Plea: Not Guilty.  Finding: Withdrawn.
	Specification 2: Did between 20030801 and 20050305, violate a lawful general regulation, to wit: DoD Directive 5500.7-R, by wrongfully using a government computer for unofficial and unauthorized purposes.  Plea: Guilty.  Finding: Guilty E/S.
	Charge II: Violation of the UCMJ, Article 121.
	Specification: Did, between 20030801 and 20050315, steal (1) Dell laptop computer, CPU HH4YG11 with components, property, of a value greater than $500.00, the property of the U.S. Government. Plea: Not Guilty.  Finding: Not Guilty.
	Sentence: Confinement for 11 days, forfeiture of $800.00, restriction for 60 days, reduction to E-1.
	CA action:  Not found in record.

20050721:	Applicant to confinement [Extracted from DD Form 214].

20050730:	Applicant from confinement [Extracted from DD Form 214].

Elements of Discharge:  [INVOLUNTARY]

Date Notified:					20050801
Basis for Discharge:				 DUE TO 
				
Least Favorable Characterization:			
Commanding Officer’s Intended Recommendation:	

Date Applicant Responded to Notification:		20050802
Rights Elected at Notification:
	Consult with Counsel			
	Obtain Copies of Documents		
	Submit Statement(s) (date)			
	Administrative Board			

Administrative Board Date:			20050929
Findings	BY :   DUE TO A PATTERN OF MISCONDUCT
						BY  SEPARATION WARRANTED 
	Recommendation on Separation: 		BY         
Recommendation on Characterization:		BY UNANIMOUS VOTE UNDER OTHER THAN HONORABLE CONDITIONS

Commanding Officer Recommendation (date):	 (20050803)
SJA review (date):				 (20051115)
Separation Authority (date):	COMMANDING GENERAL, 1ST MARINE AIRCRAFT WING (20051115)
	Basis for discharge directed:		 DUE TO A 
	Characterization directed:			
Date Applicant Discharged:			20051123

Additional Documents Submitted by Applicant and Considered By Board

Total Number of Pages:				4
Related to Period of Service Under Review:
	From Service and/or Medical Record:		Other Records:	
Related to Other Period(s) of Service:
	From Service and/or Medical Record:		Other Records:	
Related to Post-Service Period:
	Employment:					Finances:	
	Health/Medical Records:				Substance Abuse:	
	Family/Personal Status:				Education:	
 	Community Service Efforts:			References:	
	Criminal Records:			
Other:
	Additional Statements From Applicant:		From Representative:	

Pertinent Regulation/Law

A.  Paragraph 6210, MISCONDUCT, of the Marine Corps Separation and Retirement Manual, (MCO P1900.16F), effective 01 Sep 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 121, Larceny 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