ex-, USMC
MD07-00353

Current Discharge and Applicant’s Request

Application Received:  20070129            Characterization Received:  
Narrative Reason:  SEPARATION IN LIEU OF COURT MARTIAL		        Authority:  MARCORSEPMAN 6419

Applicant’s Request:	Characterization change to:  
			Narrative Reason change to: 
Applicant’s Issues:	1. Desire to re-enlist
			2. Characterization not warranted by overall record
			3.  Post service conduct

Decision

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

Date:  20071011  		  		     Location:  Washington D.C.  

Discussion

Issue(s) 1:   either  which the Board cannot form the basis of relief for the Applicant, or  the Board does not have the authority to grant the relief for which the Applicant petitioned.  The Applicant is directed to the Addendum regarding .  

Issue 2 ().  A general discharge is warranted when a member’s service has been honest and faithful, but significant negative aspects of a member’s conduct or performance of duty outweigh the positive aspects of the member’s military record.  An under other than honorable conditions discharge is warranted for behavior that constitutes a significant departure from the conduct expected of a Marine.  The Applicant’s service was marred by a retention warning, 4 NJPs  for violations of Articles 86, 91, 92 and 134 of the UCMJ, vacation of a suspended NJP punishment, and his admission of guilt to adultery, in violation of Article 134 of the UCMJ.  The Applicant’s conduct, which forms the primary basis for determining the character of his service, reflects his willful failure to meet the requirements of his contract with the Marine Corps and falls far short of that required for an upgrade of his characterization of service.  

Issue 3 ().  The Applicant claims that he has learned from his mistakes; however, he provides no evidence of good post-service conduct to support his claim.  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.  As of this time, the Applicant has not provided any post-service evidence to consider mitigating the misconduct that resulted in the characterization of discharge.  

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)	19931027 - 19940814  		Active:   
Period of Service Under Review:
Date of Enlistment: 19940815		Years Contracted:  		Date of Discharge:  19970715
Length of Service:  02  Yrs  11  Mths  01  Dys	Lost Time:  Days UA:    Days Confined:  
Education Level:  	Age at Enlistment:  	AFQT:  46	MOS:  1812  Highest Rank:  
Proficiency/Conduct marks (# of occasions):	4.6(7)/3.9(7)	Fitness reports:   
Awards and Decorations (per DD 214):  NATIONAL DEFENSE SERVICE MEDAL, CERTIFICATE OF COMMENDATION (2), MERITORIOUS MAST, RIFLE EXPERT BADGE, PISTOL SHARPSHOOTER BADGE

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

19950308:	NJP -- Viol UCMJ Art. 92 – Beyond liberty limits.
	Awarded - Restr for (14 days); Extra duties (14 days).   Extra duties suspended for 6 months.

19960329:	NJP -- Viol UCMJ Art. 86 - Unauthorized absence (1 hr, 25 mins), Art. 92 - Underage drinking.
	Awarded - FOP ($100.00) for (1 month), susp 6 mths; Restr and Extra duties for (14 days), 7 days susp 6 mths)

19960815:	Suspended FOP, Restr and Extra duty awarded at NJP on 19960329 vacated this date.

19960820:	NJP -- Viol UCMJ Art. 91 - Disrespectful language to NCO, Art. 134 - Wrongfully communicate a threat.
	Awarded - FOP ($490.00) for (1 month); RIR (E-2); Extra duties (30 days).

19961119:	NJP -- Viol UCMJ Art. 86 - Unauthorized absence (2 hrs, 20 mins).
	Awarded - FOP ($228.00) for (1 month); Restr for (14 days); Extra duties (14 days).

19961125:	MARCORSEPMAN 6105 counseling for pattern of misconduct.

Discharge Process

Charge(s) Preferred:  19970605
Charge(s) and Specification(s):  Article 134:  Adultery
Date Applicant Submitted SILT request:		19970612
	Consulted with or Waived Counsel:		
	Acknowledged Understanding Elements:	
	Acknowledged Guilt to:			Article(s) 134 
		BCD/DD authorized for offense(s)	
	Acknowledged Consequences of OTH:	
SJA Review					SUFFICIENT IN LAW AND FACT (19970630)
Separation Authority (date):			CG, 1ST MARINE DIVISION (REIN) (19970703)
	Reason for Discharge directed:		
	Characterization directed:			
Date Applicant Discharged:			19970715

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 6419, SEPARATION IN LIEU OF TRIAL BY COURT-MARTIAL, of the Marine Corps Separation and Retirement Manual, (MCO P1900.16E), effective 18 August 1995 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 IV, Para 403m(7)(a), 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 134, Adultery.

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