ex-, USMC
MD07-00261

Current Discharge and Applicant’s Request

Application Received:  20061221 	Characterization Received:  
Narrative Reason:  Misconduct-Minor disciplinary infraction	Authority:  MARCORSEPMAN 6210.2

Applicant’s Request:	Characterization change to:    
			Narrative Reason change to: 
Applicant’s Issues:	1.  Reenlistment opportunity.
			2.  Immaturity and personal problems caused misconduct.

Decision

By a vote of 5-0 the Characterization shall remain UNDER OTHER THAN HONORABLE CONDITIONS.	
By a vote of 5-0 the Narrative Reason shall remain MISCONDUCT: MISCONDUCT-MINOR DISCIPLINARY                                          INFRACTIONS.

Date:  20071002                 Location:  Washington D.C.           The Board found that 

Discussion

Issue 1:  The Board determined that this Issue is not an issue which can form the basis for relief for the Applicant or that the Board did not have the authority to grant the relief for which the Applicant petitioned.  The Applicant is directed to the Addendum. 

Issue 2 (Equity).    When a Marine has a documented series of at least three minor disciplinary infractions during the current enlistment, of a nature which have been or would have been appropriately disciplined under Article 15, UCMJ, administrative separation proceedings are authorized using Minor Disciplinary Infractions as the basis for discharge.  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.  

The Board reviews the propriety and equity of an Applicant’s discharge individually, on a case-by-case basis.  If such a review reveals an impropriety or inequity, relief is in order.  Regulations permit relief on equitable grounds if the Applicant’s discharge is inconsistent with standards of discipline of the Naval service.  The Applicant contends that his problems were attributed to immaturity.  While he may feel that this was the underlying cause of misconduct, the record clearly reflects willful misconduct and demonstrated he was unfit for further service.  When a Marine’s service has been honest and faithful, it is appropriate to characterize that service under honorable conditions.  A 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 service was marred by one discharge warning and four nonjudicial punishments for Article(s) 86, Unauthorized absence and 91, Willfully disobeying.  Violation(s) of Article 91 are considered serious offenses for which a punitive discharge is authorized if adjudged by a Special or General Courts Martial.  An upgrade to honorable would be inappropriate.

Summary of Service

Prior Service:
Inactive: USMCR (DEP)	19881011 - 19890613  		
Period of Service Under Review:
Date of Enlistment: 19890614		Years Contracted:    		Date of Discharge:  19930608
Length of Service:  03  Yrs  11  Mths  25  Dys	Lost Time:  Days UA:  63  Days Confined:  
Education Level:  	Age at Enlistment:  	AFQT:  32	MOS:  0311  Highest Rank:  
Proficiency/Conduct marks (# of occasions):	3.6(10)/3.2(11)	 
Awards and Decorations (per DD 214):  RIFLE BADGE MARKSMAN, SEA SERVICE DEPLOYMENT RIBBON W/1 STAR, JOINT MERITORIOUS UNIT AWARD, SOUTHWEST ASIA SERVICE MEDAL W/1 BRONZE STAR, NATIONAL DEFENSE SERVICE MEDAL, MARINE CORPS EXPEDITIONARY MEDAL, SECRETARY OF STATE LETTER OF APPRECIATION

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

19900723:	MARCORSEPMAN 6105 counseling for loss of ID card.

19920416:	CO's NJP -- Viol UCMJ Art. 86 - Unauthorized absence from 19920310 to 19920330 (19 days/surrendered).
	Awarded - - FOP ($440.00) for (2 months); RIR (E-2); Restr for (45 days); Extra duties (45 days). FOP for 1 month and RIR suspended for 6 months.

19920705:	Vacate FOP and RIR awarded at NJP dated 19920416 for violations of Article(s) 86 and 91.

19921009:	CO's NJP -- Viol UCMJ Art. 86 - Absent from appointed place of duty on 19920921, Art. 91 - Willfully disobeyed an order from Sgt G_ on 19920921.  Awarded - -RIR (E-1); CCU (30 days).

19921009:	MARCORSEPMAN 6105 counseling in accordance with paragraph 6105 of Marine Corps Separation Manual for frequent violations of the UCMJ.  Discharge warning issued.

19930120:	CO's NJP -- Viol UCMJ Art. 86 - Unauthorized absence from 19921203 to 19930116 (44 days/surrendered).
	Awarded - - FOP ($407.00) for (2 months); Restr for (45 days); Extra duties (45 days).  Restr suspended for 6 months.

19930316:	CO's NJP -- Viol UCMJ Art. 86 - UA from formation on 19930315.
	Awarded - - FOP ($407.00) for (2 months); Restr for (45 days).  Restr suspended for 6 months.

19930319:	Vacate restr awarded at NJP dated 19930120.

Discharge Process

Date Notified:	19930428
Basis for Discharge:	 DUE TO 
	
Least Favorable Characterization:	
Commanding Officer’s Intended Recommendation:	

Date Applicant Responded to Notification:		19930428
Rights Elected at Notification:
	Consult with Counsel			
	Obtain Copies of Documents		
	Submit Statement(s) (date)			
	Administrative Board			

Commanding Officer Recommendation (date):	 (19930428)
SJA review (date):	 (19930518)
Separation Authority (date):	COMMANDER, 2D MARINE DIVISION  (19930519)
              Basis for discharge directed:	 DUE TO:  
              Characterization directed:	
Date Applicant Discharged:	19930608

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)       

Pertinent Regulation/Law

A.  Paragraph 6210, Misconduct, of the Marine Corps Separation and Retirement Manual, (MCO P1900.16D), effective 
27 June 1989 until 17 August 1995.

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 91.

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