ex-CAPT, USMC
MD07-00268

Current Discharge and Applicant’s Request

Application Received:  20061220 	Characterization Received:  
Narrative Reason:  UNACCEPTABLE CONDUCT 		Authority:  MARCORSEPMAN 4104

Applicant’s Request:	Characterization change to:  
			Narrative Reason change to: 
Applicant’s Issues:	1.  Record of service.
			2.  One isolated incident.
			3.  Post service.

Decision

By a vote of 5-0 the Characterization shall remain GENERAL (UNDER HONORABLE CONDITIONS).	
By a vote of 5-0 the Narrative Reason shall remain UNACCEPTABLE CONDUCT.

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

Issues 1 and 2 (Equity).  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.  There is credible evidence in the record that the Applicant violated the UCMJ.  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.  A general (under 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.  Certain serious offenses, even though isolated, warrant separation from the Naval service in order to maintain proper order and discipline.  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 the award of one nonjudicial punishment (NJP) for a violation of the Uniform Code of Military Justice (UCMJ), Article 92, Failure to obey order, regulation and one punitive letter of reprimand.  A violation of UCMJ Article 92 is considered a serious offense for which a punitive discharge is authorized if adjudged by a Special or General Courts Martial.  An upgrade to honorable would be inappropriate.  

Issue 3 (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, or good conduct 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 no documentation of post-service accomplishments.  The Applicant's efforts need to be more encompassing than those provided.  For example, the Applicant could have produced evidence of continuing educational pursuits, a verifiable employment record, documentation 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 misconduct that resulted in the characterization of discharge.   

Summary of Service

Prior Service:
Inactive: USMCR (DEP)			
Active:   	19950630 - 19990525 USNA HON
Period of Service Under Review:
Date of Commission: 19990526	Years Contracted:  INDEF		Date of Discharge:  20060113
Length of Service:  06  Yrs  07  Mths  18  Dys	Lost Time:  Days UA:    Days Confined:  
Education Level:  16	Age at Commission :  22	AFQT:  N/A	MOS:  5803  Highest Rank:  CAPT
Proficiency/Conduct marks (# of occasions):	N/A	Fitness reports:   
Awards and Decorations (per DD 214):  Navy and Marine Corps Achievement Medal, Global War on Terrorism Service Medal, Global War on Terrorism Expeditionary Medal, Sea Service Deployment Ribbon, National Defense Service Medal, Presidential Unit Citation-Navy, Navy Meritorious Unit Commendation (2d awd), Rifle Sharpshooter Badge, Pistol Expert Badge (4th awd).

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

20050812:	Applicant submitted a qualified request for resignation for cause. He stated that his resignation was based on his misconduct for dereliction of duty as outlined in Charge III of the charges referred against him by the CG, II Marine Expeditionary Force.  He admitted that he was derelict in the performance of his duty.  The Applicant requested an Honorable discharge.  The Applicant stated that he understood his request could result in discharge from the Marine Corps with a General (Under Honorable Conditions) characterization.  

20050901:	NJP -- Viol UCMJ Art. 92 (Dereliction).
	Awarded – Written Reprimand.

20050901:	Applicant given a Punitive Letter of Reprimand by CG, II Marine Expeditionary Force.

20050916	CG, II Marine Expeditionary Force recommends approval of Applicant’s resignation request and that he discharged with a characterization of General (Under Honorable Conditions).

20050926:	CG, II Marine Expeditionary Force submits a report of Applicant’s Non-judicial Punishment.  A Board of Inquiry was not recommended because Applicant submitted a request for resignation for cause which had been favorably endorsed.  

20051011:	Commander, U. S. Marine Corps Forces, Atlantic recommends approval of Applicant’s resignation request and that he discharged with a characterization of General (Under Honorable Conditions).

20011011:	Commander, U. S. Marine Corps Forces, Atlantic concurred in the recommendation that Applicant not be required to show cause pursuant to his written request for resignation.

20051201	Commandant concurred with the recommendation to approve the Applicant’s resignation request and further recommended that he be separated by reason of Unacceptable Conduct with a characterization of General (Under Honorable Conditions).   

20061206:	Assistant Secretary of the Navy (Manpower and Reserve Affairs) approved Applicant’s qualified resignation request.  Directed General (Under Honorable Conditions) discharge by reason of Resignation – Unacceptable Conduct.

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.  Secretary of the Navy Instruction 1920.6C (ADMINISTRATIVE SEPARATION OF OFFICERS), effective 15 December 2005 until Present establishes policies, standards and procedures for the administrative separation of Navy and Marine Corps officers from the naval service in accordance with Title 10, United States Code and DoD Directive 1332.30 of 14 March 1997.

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 92.

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