ex-, USMC 
MD07-00206

Current Discharge and Applicant’s Request

Application Received:  20061202 	Characterization Received:  OTHER THAN HONORABLE DISCHARGE
Narrative Reason:  SEPARATION IN LIEU OF TRIAL BY COURT-MARTIAL 	Authority: MARCORSEPMAN 6419

Applicant’s Request:	Characterization change to:    
			Narrative Reason change to: 
Applicant’s Issues:	1. The Applicant opines that his Under Other Than Honorable conditions discharge is too harsh 
			     because there were extenuating factors that contributed to his misconduct of record.  
			2. Post service - Equity

Decision

By a vote of  the Characterization shall  .
By a vote of  the Narrative Reason shall  IN LIEU OF TRIAL BY COURT-MARTIAL

Date:  20080123 		Location:  Washington D.C.	 Representation:  

Discussion

Issue 1 ().  The Applicant opines that his under other than honorable conditions discharge is too harsh because there were extenuating factors that contributed to his misconduct of record.  The evidence of record does not demonstrate that the Applicant was not responsible for his conduct or that he should not be held accountable for his actions.  When a Marine’s service has been honest and faithful, it is appropriate to characterize that service under honorable conditions.  Characterization of service as under other than  honorable conditions 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 service was marred by preferred charges for violations of the Uniform Code of Military Justice (UCMJ).  The Applicant’s misconduct included Art. 86 (unauthorized absence), Art. 91 (willfully disobeying a lawful order), Art. 92 (failure to obey a lawful order) and Art. 121 (larceny).  (Violation of UCMJ Articles 91, 92 and 121) are considered serious offenses for which a punitive discharge is authorized if adjudged by a Special or General Courts Martial.  Additionally, on 19911004 the Applicant submitted a request for administrative discharge under other than honorable conditions in lieu of trial by court-martial.  The Applicant acknowledged his understanding of his request and admitted being guilty of violating Articles 86, 91, 92 and 121 of the UCMJ.  Based on a review of the Applicants record, all procedures were followed and the Applicant was provided counsel.  The Applicant’s conduct and proficiency markings, which form the primary basis for determining the character of his service, reflect his misconduct, and fall below that required for an honorable characterization of service.  

Issue 2 ().  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 could be provided to the Board include verifiable employment records, documentation of community service and certification of non-involvement with civil authorities.  As of this time, the Applicant has not provided sufficient post-service documentation to consider mitigating the misconduct that resulted in the characterization of discharge. 

Summary of Service

Prior Service:
Inactive: USMCR (DEP)	19881025 - 19890917  		Active:   
Period of Service Under Review:
Date of Enlistment: 19890918		Years Contracted:    		Date of Discharge:  19911202
Length of Service:  02  Yrs  02  Mths  15  Dys	Lost Time:  Days UA:  10   Days Confined:  
Education Level:  	Age at Enlistment:  	AFQT:  94	MOS:  0342  Highest Rank:  
Proficiency/Conduct marks (# of occasions):	4.0(8)/4.0(8)	Fitness reports:   
Awards and Decorations (per DD 214):  RIFLE EXPERT BADGE,  PISTOL EXPERT BADGE, NATIONAL DEFENSE SERVICE MEDAL

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

19910729:	Applicant released for police custody.  Court date of 19910826 for possession of stolen goods.

19910815:	Medical Record:  Reason for visit:  Has been noted by family and coworker to be acting differently.  Second opinion
	Diagnosis:  Schizoid traits
	Recommendation:  No major psychiatric illness is evidence.  Administratively cleared for any action deemed appropriate by command.

Discharge Process

Charge(s) Preferred:  19910826
Charge(s) and Specification(s):
	Article 86: Unauthorized absence from 0601, 19910719 until apprehended on 19910730.
	Article 91: Willfully disobey a lawful order.
	Article 92:  Fail to obey lawful order
	Article 121 (2 specs):  (1) Steal one set of Virginia State License plates.
			        (2) Steal one Government decal.

Date Applicant Submitted SILT request:		19911004
	Consulted with or Waived Counsel:		
	Acknowledged Understanding Elements:	
	Acknowledged Guilt to:			Article(s) 86, 91, 92 and 121 
		BCD/DD authorized for offense(s)	
	Acknowledged Consequences of OTH:	
	Type of Characterization Requested:	

Commanding Officer Recommendation (date):	   (19911017)
Separation Authority (date):			COMMANDING GENERAL, FLEET MARINE FORCE, ATLANTIC (19911119)
	Reason for Discharge directed:		
	Characterization directed:			
Date Applicant Discharged:			19911202

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)   Career Occupational Preference System Summary

Pertinent Regulation/Law

Pending results of hearing.

A.  Paragraph 6419, SEPARATION IN LIEU OF TRIAL BY COURT-MARTIAL, of the Marine Corps Separation and Retirement Manual, (MCO P1900.16E), effective 27 June 1989 until 1 July 1994.

B.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part IV, Para 403m (7) (b), Presumption Concerning Court-Martial Specifications.

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(s) 91, 92, and 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 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