ex-, USMC
MD07-00204

Current Discharge and Applicant’s Request

Application Received:  20061206 	Characterization Received:  
Narrative Reason:  MISCONDUCT 		Authority:  MARCORSEPMAN 6210.3

Applicant’s Request:	Characterization change to:    
			Narrative Reason change to: 
Applicant’s Issues:	1. Immaturity in Service
2. Post Service
			
Decision

By a vote of  the Characterization shall  .	
By a vote of  the Narrative Reason shall  MISCONDUCT.

Date:  20070920                 Location:  Washington D.C.        The Board found that 
  
Discussion

Issue 1: ().  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 a pending trial by court martial for violations of the Uniform Code of Military Justice (UCMJ) Articles 86, 91, and 107.  Violation of UCMJ Article 91 (Willfully Disobeying a Noncommissioned Officer) and Article 107 (False Official Statements are considered serious offenses for which a punitive discharge is authorized if adjudged by a Special or General Courts Martial.  A change of Characterization of Service would be inappropriate.  

Issue 2: (Equity).  The NDRB is authorized to consider post-service factors in the recharacterization of a discharge.  However, there is no law or regulation, which provides 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.  Normally, to permit relief, a procedural impropriety or inequity must have been found to have existed during the period of enlistment in question.  Outstanding post-service conduct, 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, is considered.  The Applicant provided two character reference statements and verification of post-service education.  The Applicant's efforts need to be more encompassing.  For example, the Applicant could have produced evidence of community service and certification of non-involvement with civil authorities.  The Board determined that the documentation provided by the Applicant did not mitigate the circumstances that resulted in the characterization of discharge.

Administrative Corrections to the Applicant’s DD 214

The NDRB did note administrative error(s) on the original DD Form 214:

	  “02  07 11”
	  “TL: (2) 001023 to 001025, (2) 010130-010201, (1) 010206, (1) 010214, (2) 011121 TO 011123”
	
The NDRB will recommend to the Commandant of the Marine Corps that the DD 214 be corrected as appropriate. 

Summary of Service

Prior Service:
Inactive: USMCR (DEP)	19980930 - 19981012  		Active:   
Period of Service Under Review:
Date of Enlistment: 19981013		Years Contracted:  		Date of Discharge:  20010601
Length of Service:  02  Yrs  07  Mths  19  Dys	Lost Time:  Days UA:  8  Days Confined:  
Education Level:  	Age at Enlistment:  	AFQT:  47	MOS:  3043  Highest Rank:  
Proficiency/Conduct marks (# of occasions):	.44(6)/4.4(6)	Fitness reports:   
Awards and Decorations (per DD 214):  NAVY AND MARINE CORPS OVERSEAS RIBBON, MERITORIOUS MAST

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

20000613:	MARCORSEPMAN 6105 counseling for being UA from 0730-0815 on 20000530 and failure to get authorization and leave papers before departing on convalescent leave.  Advised that failure to take corrective action may result in an administrative separation or limitation of length of service.

20000906:	CO's NJP -- Viol UCMJ Art. 86 - Absent from appointed place of duty on 1301-1630, 20000717, Art. 91 - Willfully disobey lawful order on 20000718, Art. 107 - False official statement on 20000718 
	 Awarded - - FOP ($585.00) for (1 month); Restr for (45 days); Extra duties (45 days).  FOP, Restr for 30 days and Extra duties for 30 days suspended for 6 months.

20010330:	CO's NJP -- Viol UCMJ Art. 86 (5 specs) - (1) Absent from appointed place of duty on 20001023 until 20001025, (2) Absent from appointed place of duty from 20001121 until 20001123, (3) Absent from appointed place of duty on 20010130 until 20010201, (4) Absent from appointed place of duty 20010206 until 20010207, (5) Absent from appointed place of duty on 20010214 until 20010215, Art.107 (6 specs) - (1) False official statement to GySgt D_ on 0830, 20010214, (2) Falsify an official statement on 20001023 by changing the dates and total hours of sick in quarters, (3) Falsify an official statement on 20001121 by changing the dates and total hours of sick in quarters, (4) Falsify an official statement on 20010130 by changing dates and total hours of sick in quarters, (5) Falsify an official statement on 20010206 by changing the dates and total hours of sick in quarters, (6) Falsify an official statement on 20010214 by changing the dates and total hours of sick in quarters.
	Awarded - - FOP ($584.00) for (2 months); RIR (E-2); Restr for (45 days); Extra duties (45 days).  FOP for 1 month suspended for 6 months.

20010417:	Applicant to UA, failed to obey a lawful order, and disrespectful in language and deportment to a SNCO.  [Extracted from SJA’s letter dated 20010507.]

Discharge Process

Date Notified:	20010416
Basis for Discharge:	 DUE TO:  
Least Favorable Characterization:	
Commanding Officer’s Intended Recommendation:	

Date Applicant Responded to Notification:		20010420
Rights Elected at Notification:
	Consult with Counsel			
	Obtain Copies of Documents		
	Submit Statement(s) (date)			
	Administrative Board			

Commanding Officer Recommendation (date):	 (UNDATED)
SJA review (date):	 (20010507/20010529)
Separation Authority (date):	COMMANDING GENERAL, MARINE CORPS BASE, QUANTICO, VA (20010529)
              Basis for discharge directed:	 DUE TO:  
              Characterization directed:	
Date Applicant Discharged:	20010601

Types of Documents Submitted by Applicant and Considered By Board

Related to Military Service:	Service and/or Medical Record:  		Other Records:  

Related to Post-Service Period:  	
	Employment:  			Finances:  			Education: 		
	Health/Medical Records:  		Substance Abuse:			Criminal Records:  	
	Family/Personal Status: 		Community Service:  		References:  		
	
Additional Statements From Applicant:  	From Representative:    
Other Documentation (Describe)  Applicant's résumé

Pertinent Regulation/Law

A.  Paragraph 6210, MISCONDUCT, of the Marine Corps Separation and Retirement Manual, (MCO P1900.16E), effective 
31 January 1997 until 31 August 2001.

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 91 and 107.

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 to the Joint Service Review Activity, OUSD (P&R) PI-LP, The Pentagon, Washington, DC  20301-4000.  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