FOR
 ex-PVT, USMC
MD06-01221

Current Discharge and Applicant’s Request:

Application Received:  				20060914
	Characterization of Service:		
	Basis for Discharge:			  due to:  
	Discharge Authority:			MARCORSEPMAN 6210.6
	Duty Assignment/Command at Discharge:	HQSPTBN, MCB, CAMLEJ NC 28542

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

Applicant’s Issues:
1.  Youth and immaturity.
2.  Post service.
Decision:

By a vote of 5-0 the Characterization shall remain UNDER OTHER THAN HONORABLE CONDITIONS.	
By a vote of 5-0 the Basis for Discharge shall remain MISCONDUCT.

Date of Decision:					20070816	
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):  The Applicant contends that his misconduct while in the Marine Corps was due to being  young and naïve at the time.   While this may be the underlying reason for his actions, the evidence of record did not show that the Applicant was not responsible for his conduct, or that he should not have been held accountable for his actions.  A Marine may be separated for a commission of a serious military offense when the circumstances of the offense warrant separation.  When a Marine’s service has been honest and faithful, it is appropriate to characterize that service as under honorable conditions.  However, when significant negative aspects of a member’s conduct outweigh the positive aspects of the member’s military record, an under other than honorable conditions characterization is warranted.  The Applicant’s conduct during his period of Marine Corps service, which forms the primary basis for determining the character of his service, was marred by two serious incidents.  First, the award of nonjudicial punishment (NJP) for violation of the Uniform Code of Military Justice (UCMJ), Article 86, Unauthorized Absence, in that he was UA for more than 230 days, or more than 7 months.  Second, he was convicted by a Summary Court-Martial for violation of Art121, Larceny, in that he stole the property of another Marine.   A violation of either Article 86 (for more than 30 days) or Article 121 is considered a serious offense, for which a punitive (Bad Conduct or Dishonorable) discharge is authorized if adjudged by a Special or General Court-Martial.  An upgrade to General (Under Honorable Conditions) would be inappropriate in this case.  

Issue 2 (Equity):  The NDRB is authorized to consider post-service factors in deciding whether to re-characterize a discharge.  However, there is no law or regulation providing that an unfavorable discharge may be upgraded based solely on the passage of time, good conduct, or favorable endorsements in the civilian life subsequent to leaving the service.   Ordinarily, the NDRB must find that a procedural impropriety or inequity existed during the period of enlistment in question before it can grant relief.  Outstanding post-service conduct is considered by the NDRB 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.  The Applicant provided three letters of recommendation from his employer and two clients/associates as documentation of post-service accomplishments.  The Applicant's efforts need to be more encompassing  to be compelling.  For example, the Applicant could have produced evidence of continuing educational pursuits, a verifiable employment record, documentation of community service, evidence of drug free existence, and certification of non-involvement with civil authorities.  The Board determined that the documentation provided by the Applicant did not mitigate the misconduct that resulted in the characterization of  his discharge.  

Summary of Service:

Prior Service:
Inactive: USMCR (DEP)				20020828 - 20020908  
Active:   		              	 		

Period of Service Under Review:
Date of Enlistment:  				20020909
Years Contracted:  				; Extension:   
Date of Discharge:				20040422
Length of Service
	Active:					01Yrs  07  Mos  13  Dys  (does not exclude lost time)
	Time Lost During This Period:		276   Days UA:  236  Days Confinement:  15
	
Education Level:  				
Age at this Enlistment:  				
AFQT:  						65
MOS:						0811
Highest Rank:					
Proficiency/Conduct marks (# of occasions):		3.8(5)/3.1(5)

Awards and Decorations (fm DD Form 214):  RIFLE SHARPSHOOTER, NATIONAL DEFENSE SERVICE MEDAL 

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

20040115:	NJP for violation(s) of UCMJ:
	Article 86: Did on or about 20030424, without authority, absent himself from his unit until 20031216.
	Award:  Forfeiture of $596.00 for 2 months (1 month suspended for 6 months), restriction for 60 days, reduction to E-1.
	Not appealed.

20040123:	Applicant to confinement.
20040128:	Applicant from confinement.

20040325:	Summary Court-Martial.
	Charge I: Violation of the UCMJ, Article 121.
	Specification: Did O/A 20040122, steal one JVC digital video camera, valued ~$619.00, the property of Sergeant T_ R. B_.  Plea: Guilty.  Finding: Guilty..
	Charge II: Violation of the UCMJ, Article 134:
 	Specification: Break said restriction on or about 20040221.. Plea: Guilty.  Finding: Not Guilty..
 	Sentence: Forfeiture of $500.00, 19 days confinement.
	CA action 20040330:  Sentence approved and ordered executed.

20040326:	Applicant to confinement.
20040404:	Applicant from confinement.

Elements of Discharge:  [INVOLUNTARY]

Discharge Process:				
Date Notified:					20040115
Basis for Discharge:				 due to:  
Least Favorable Characterization:			
Commanding Officer’s Intended Recommendation:	

Date Applicant Responded to Notification:		20040115
Rights Elected at Notification:
	Consult with Counsel			
	Obtain Copies of Documents		
	Submit Statement(s) (date)			
	Administrative Board			

Commanding Officer Recommendation (date):	 (20040405)
SJA review (date):				 (20040412)
Separation Authority (date):	COMMANDING GENERAL, MARINE CORPS BASE, CAMP LEJEUNE (20040415)
	Basis for discharge directed:		 due to:  
	Characterization directed:			
Date Applicant Discharged:			20040422

Additional Documents Submitted by Applicant and Considered By Board

Total Number of Pages:				5
       
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:	
        	Other Documentation (Describe)		      

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 violation of the UCMJ, Article 86 or Article 121.

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