ex-, USMC
MD07-00235

Current Discharge and Applicant’s Request

Application Received:  20061213    Characterization Received:  
Narrative Reason:  MISCONDUCT - COMMISSION OF A SERIOUS OFFENSE (ALL OTHER) (ADMINISTRATIVE 			  DISCHARGE BOARD REQUIRED BUT WAIVED).	Authority:  MARCORSEPMAN 6210.6

Applicant’s Request:	Characterization change to:    
			Narrative Reason change to: 
Applicant’s Issues:	1. Misconduct caused by mental disorder.
			2. Post-service conduct.

Decision

By a vote of  the Characterization shall  .	
By a vote of  the Narrative Reason shall  MISCONDUCT - COMMISSION OF A SERIOUS OFFENSE (ALL OTHER) (ADMINISTRATIVE DISCHARGE BOARD REQUIRED BUT WAIVED).

Date:  20070920  			       Location:  Washington D.C.  

Discussion

Issue 1 ().  When a Marine’s service meets expected standards of performance and conduct, it is appropriate to characterize that service as honorable.  Characterization of service as under other than honorable conditions is warranted when a Marine’s conduct constitutes a significant departure from standards expected of members of the naval service.  The Applicant’s service was marred by a civilian conviction for a sexual offense, for which like serious offense a punitive discharge is authorized under the UCMJ.  In addition, the Applicant committed the offense while absence without leave, a separate offense for which he received nonjudicial punishment.  There is no evidence in the record to support the Applicant’s contention that his subsequently diagnosed mental disorder excused his misconduct.  An upgrade to honorable would be inappropriate.  

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 the service.  The NDRB is authorized to consider outstanding post-service factors in the recharacterization of a discharge 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.  After a complete review of the entire record, including the evidence submitted by the Applicant, the Board determined that the discharge was appropriate and that the evidence of post-service conduct was found not to mitigate the conduct which precipitated the discharge.  The Board particularly noted that Applicant’s post-service evidence demonstrated his recidivism.

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, Medical and Service Record Entries, Discharge Process and evidence submitted by the Applicant, the Board found that  

Summary of Service

Prior Service:
Inactive: USMCR (DEP)	19940129 - 19940606  		Active:   	
Period of Service Under Review:
Date of Enlistment: 19940607	Years Contracted:  ; Extension:    		Date of Discharge:  19950302
Length of Service:  00  Yrs  08  Mths  26  Dys	Lost Time:  Days UA:  17  Days Confined:  50 (IHCA)
Education Level:       Age at Enlistment:     AFQT:  35   MOS: 9971    Highest Rank:  
Proficiency/Conduct marks (# of occasions):	3.0(2)/3.0(2)	Fitness reports:   
Awards and Decorations (per DD 214):  RIFLE SHARPSHOOTER BADGE, NATIONAL DEFENSE SERVICE MEDAL 

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

19941002:	Applicant IHCA this date by Glencoe Police Department, charged with felony criminal sexual assualt.

19941110:	Applicant convicted in civil court McLeod County, Minnesota of felony criminal sexual conduct.
	Sentence: Confinement for 75 days, $300.00 fine, and probation for five years.

19941120:	Applicant from IHCA this date.

19941129:	CO's NJP -- Viol UCMJ Art. 86 - Unauthorized absence 19940914 to 19941002 (17days/apprehended).  Awarded - FOP ($416.00) for (2 months); Restr for (45 days); Extra duties (45 days).
	MARCORSEPMAN 6105 counseling for (Art. 86: UA from 0400, 19940914 until 1112, 19941002).

Discharge Process

Date Notified:	19950112
Basis for Discharge:	 DUE TO 
Least Favorable Characterization:	
Commanding Officer’s Intended Recommendation:	

Date Applicant Responded to Notification:		19950112
Rights Elected at Notification:
	Consult with Counsel			
	Obtain Copies of Documents		
	Submit Statement(s) (date)			
	Administrative Board			

Commanding Officer Recommendation (date):	 (19950112)
SJA review (date):	 (19950224)
Separation Authority (date):	CG, MARINE CORPS BASE, CAMP PENDLETON  (19950224)
              Basis for discharge directed:	 DUE TO:  
              Characterization directed:	
Date Applicant Discharged:	19950302

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)  Minnesota Driver's License/Identification Card Application

Pertinent Regulation/Law

A.  Paragraph 6210, Misconduct, The Marine Corps Separation and Retirement Manual, (MCO P1900.16D), effective 27 Jun 89 until 17 Aug 95.

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 120, Rape and carnal knowledge.

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