FOR
 ex-, USMC
MD07-00074

Current Discharge and Applicant’s Request:

Application Received:  				20061012
	Characterization of Service:		
	Basis for Discharge:			  DUE TO:  
	Discharge Authority:			MARCORSEPMAN 6210.3
	Duty Assignment/Command at Discharge:	3DBN 10THMAR 2DMARDIV CAMLEJ NC

Applicant’s Request:
	Characterization change to:		
	Narrative Reason change to: 		
	Review Requested:			
	Representation:  				
	
Applicant’s Issues:
1.  Unfair/inequitable characterization due to good service record

Decision:

By a vote of  the Characterization shall  .	
By a vote of  the Basis for Discharge shall  .

Date of Decision:					20070823
Location of Board:				Washington D.C.
Complete Service Record:				
Complete Medical Record:			
Complete Discharge Package:			

Regarding propriety, the Board found the discharge:	
Regarding equity, the Board found the discharge:	

Issue 1 (Equity):  The Applicant contends his character of service at the time of discharge was inequitable due to his award of the Good Conduct Medal for his first 3 years of service.   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 the reason for separation is behavior that constitutes a significant departure from conduct expected of a Marine, or when significant negative aspects of a member’s conduct or performance of duty outweigh the positive aspects of the member’s military record.  The record does show that the Applicant was awarded the Marine Corps Good Conduct Medal.  However, the Applicant’s record of service was also marred by nine adverse counseling entries (including 4 retention warnings); one nonjudicial punishment proceeding for violation of Article 134 (Impersonating an agent or official) of the Uniform Code of Military Justice (UCMJ); and one Summary Court-Martial where he was found guilty of violating Articles 92 (Failure to obey a lawful order) and 134 (Breaking Restriction) of the UCMJ.  Further, the record indicates that the Applicant was convicted on 19990609 by a civilian court for Driving Under the Influence (DUI), an offense that is also chargeable under Article 111 of the UCMJ.  Violations of Articles 92, 111, and 134 (Impersonating) are considered serious offenses, for which a punitive discharge is authorized if adjudged by a Special or General Court-Martial.   Therefore, the Board decided that an upgrade of characterization to General (under honorable conditions) would 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)				19990424 -19991025  
Active:   

Period of Service Under Review:
Date of Enlistment:  				19991026
Years Contracted:  				
Date of Discharge:				20031017
Length of Service
	Active:					03  Yrs  11  Mths  22  Dys  (does not exclude lost time)
	Time Lost During This Period:		Days UA:    Days Confinement:  30
	
Education Level:  				
Age at this Enlistment:  				
AFQT:  						32
MOS:						2531 FIELD RADIO OPERATOR
Highest Rank:					
Proficiency/Conduct marks (# of occasions):		3.9(7)/4.0(7)

Awards and Decorations (as listed on the DD Form 214):  MARINE CORPS GOOD CONDUCT MEDAL, NATIONAL DEFENSE SERVICE MEDAL, RIFLE QUALIFICATION BADGE MARKSMAN

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

20001101:	Counseling:  Advised of deficiencies in performance and conduct (In accordance with MCO 1900.16c par 6106.  Applicant is being counseled for utilizing poor judgment, disobedience of a lawful order, and frequent alcohol abuse.  Specifically you were stopped at the front gate of Camp Lejeune for an I.D. check on 20001026 @ 0230 and subsequently tested for your BAC.  A BAC of .03 was confirmed.  You failed to follow the guidelines by the BN SACO of which not to consume any alcohol 72 hours prior to your ATF appointment.  This is not your first ARI while with 3/10.), necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

20010101:	Counseling:  Advised of deficiencies in performance and conduct (Your failure of the ATG program.  Specifically, you were dropped from the ATF program as a Alcohol Treatment failure due to your consumption of alcohol during the course and failure to follow the guidelines of the course.), necessary corrective actions explained, sources of assistance provided, and advised being processed for administrative discharge action.

20010517:	Applicant to Alcohol Treatment Department.

20010522:	applicant evaluated by clinical psychologist.  Recommendations:  The problems endorsed by this applicant tend to be very resistant to change.  Such applicants often find it difficult to trust a therapist, especially early in treatment.  Considerable problems exist with his home life and work, thus treatment should be sure to include such matters.  After substance treatment has concluded a referral to a mental health professional is warranted.

20010601:	Applicant discharged as a successful completion.  Discharge diagnosis is alcohol dependence.

20011128:	Counseling:  Advised of deficiencies in performance and conduct (Substandard performance.  Notification of revocation of base driving privileges.  You failed to appear at the remedial drivers course on 20011117.  Your appearance was required as a result of a sentence imposed for a previous violation.  Your failure to appear constitutes violations of Article 92 (failure to obey order or regulation) and Article 86 (unauthorized absence) of the Uniform Code of Military Justice.  You are not recommended for promotion for the next quarter 20011201 through 20020201.  Following the period the commanding officer will reevaluate your leadership potential for the next higher grade.), necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

20021005:	Counseling:  Advised of deficiencies in performance and conduct (Not recommended for promotion in the rank of Corporal for the period covered 20021201 - 20021231.  The recommendation is based on: the command has determined you have failed to positively demonstrate the maturity to satisfactory discharge the duties of a small unit leader.  Specifically you have failed to show the leadership necessary, by initiative within the Radio Shop.  You need to organize your personal affairs so that they do not interfere with your progression as a Marine), necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

20021008:	Counseling:  Advised of deficiencies in performance and conduct (Not recommended for promotion in the rank of Corporal for the period covered 20021001 - 20021031.  The recommendation is based on the command has determined you have failed to positively demonstrate the maturity required to satisfactory discharge duties of a small unit leader.  Specifically, you have failed to show the leadership necessary, by initiative within the Radio Shop.  You need to organize your personal affairs so that they do not interfere with your progression as a Marine.), necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

20021213:	Counseling:  Advised of deficiencies in performance and conduct (Not recommended for promotion in the rank of Corporal for the period covered  20030101 - 20030131.  The recommendation is based on: the command has determined you have failed to demonstrate the potential and maturity to satisfactory discharge the duties of a small unit leader.  Specifically, you have pending legal action against you for failure to pay a debt.  Additionally you are not capable of telling the truth to your superiors.), necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

20030103:	Marine Corps Criminal Investigative Division Report.

20030114:	Counseling:  Advised of deficiencies in performance and conduct (During a Battalion Commander’s inspection of the BEQ government issued property was found unsecured.  You(r) failure to properly secure your government property issued property places you in direct violation of the Battalion BEQ Policy.), necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

20030130:	NJP for violation(s) of UCMJ:
	Article 134: On or about 20021111 and 20021207, wrongfully impersonate a CID agent, and a Jacksonville Police Department officer by giving fictitious information to an officer, and submitting a false police report.
	Award:  Forfeiture of $619.00 for 2 months, restriction and extra duty for 45 days, reduction to E-2.
	Not appealed.

20030206:	Substance abuse evaluation:  Applicant to follow up with Division Psychiatry.  Applicant should be processed for administrative separation as a treatment failure.

20030317:	Summary Court-Martial.
	Charge I: Violation of the UCMJ, Article 134.
	Specification 1: Break restriction by leaving restriction room without proper authority on 20030211. 	 Plea: Not Guilty.  Finding: Guilty.
	Specification 2: Break restriction by leaving restriction room without proper authority on 20030215.        Plea: Not Guilty.  Finding: Guilty
	Specification 3: Break restriction by riding a POV without proper authority on 20030226.  	         Plea: Not Guilty.  Finding: Guilty
	Charge II: Violation of the UCMJ, Article 92:
	Specification: Fail to obey a lawful order issued by Battalion Officer of the Day to return to his work section.  Plea: Not Guilty.  Finding: Guilty
	Sentence: Forfeiture of $767.00, confinement for 1 month, reduction to E-1.
	CA action not found in record.

20030317:	Applicant to confinement.
20030415:	Applicant from confinement.

20030610:	Counseling:  Advised of deficiencies in performance and conduct (Alcohol related incident, specifically DUI conviction on 20030609 on Onslow County court.), necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

Elements of Discharge:  [INVOLUNTARY]

Date Notified:					20030210
Basis for Discharge:	 DUE TO:  
Least Favorable Characterization:	
Commanding Officer’s Intended Recommendation:	

Date Applicant Responded to Notification:		20030210
Rights Elected at Notification:
Consult with Counsel				
	Obtain Copies of Documents		
	Submit Statement(s) (date)			
	Administrative Board			

Administrative Board Date:			20030814
Findings, by preponderance of the evidence:	By   DUE TO  .
						By  SEPARATION  WARRANTED.
	Recommendation on Separation: 		By  
               Recommendation on Characterization:	By 

Commanding Officer Recommendation (date):	 (20030210)
SJA review (date):				 (20031006)
Separation Authority (date):	COMMANDER, 2D MARINE DIVISION, II MARINE EXPEDITIONARY FORCE (20031007)
	Basis for discharge directed:		 DUE TO:  
	Characterization directed:			
Date Applicant Discharged:			20031017

Additional Documents Submitted by Applicant and Considered By Board

Total Number of Pages:				1
       
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.  Paragraph 6210, MISCONDUCT, of the Marine Corps Separation and Retirement Manual, (MCO P1900.16F), effective 
01 September 2001 to the 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, Articles 92, 111, and 134.   

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