ex-, USMC
MD07-00355

Current Discharge and Applicant’s Request

Application Received:  20070119 	Characterization Received:  
Narrative Reason:  MISCONDUCT 		Authority:  MARCORSEPMAN 6210.3

Applicant’s Request:	Characterization change to:  
			Narrative Reason change to: MEDICAL DISCHARGE
Applicant’s Issues:	1. Should have been medically discharged.
			2. Did not commit misconduct for which separated.
			3.  Was not discharged at court-martial and therefore should not have been separated.
			4.  Discharge was not warranted by overall service record.
			5.  Command waited to long to discharge me after court-martial, and was too close to EAS.
			6.  Punishment received was more severe than others committing similar offenses.
			7.  Discharge was based on improper command influence.
			8.  Not properly notified of basis for discharge.
			9.  Counsel was ineffective.
			10.  Post-service conduct.

Decision

By a vote of  the Characterization shall  .	
By a vote of  the Narrative Reason shall  MISCONDUCT.

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 (). Relevant and material facts stated in a court-martial specification of which a member has been found guilty are presumed by the NDRB to be established facts.  In addition, the Board found credible evidence in the record to support the finding of misconduct associated with the Applicant’s NJP.

Issue 3 (). A court-martial sentence which does not include a punitive discharge is not a bar to subsequent administrative separation for the same misconduct.

Issue 4 (). The Board concurred with the Applicant that there were positive aspects of her service.  However, the Applicant’s service was marred by an NJP for violation of Articles 86 and 91 of the UCMJ, and a special court-martial conviction for violation of Articles 86 and 92 of the UCMJ.  Such misconduct warrants separation.

Issue 5 (). While there are processing time goals for administrative purposes, there are no prescribed time limits associated giving rise to substantive rights to a servicemember in the administrative separation process.  The Applicant’s court-martial was on 20020604; the military judge authenticated the record of trial on 20020808; and, although the date is not indicated in the record, the convening authority approved the sentence and ordered it executed at some time after that.  The Applicant was notified of the proposed administrative separation on 20020905.  The Board did not find any impropriety or inequity in the time frame of these events.

Issue 6 ().  The Applicant asserts that her discharge was inequitable because another servicemember was punished less harshly for similar misconduct.  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.  A preponderance of the evidence reviewed supports the conclusion that the Applicant committed a pattern of misconduct, that separation from the Naval service was appropriate, and that a general (under honorable conditions) discharge was warranted.  

Issue 7 ().  The record contains no evidence of any wrongdoing by the Applicant’s Commanding Officer or anyone else associated with the discharge process.  The Board presumes regularity in the conduct of governmental affairs in the absence of persuasive evidence to the contrary.  The Board found that Applicant’s discharge was regular in all respects.  

Issue 8 ().  The record clearly and unambiguously demonstrates that the Applicant was properly notified on 20020905 of the proposed administrative separation.

Issue 9 ().  The Board found no evidence in the record to indicate that Applicant’s counsel was ineffective.  To the contrary, the record demonstrated that she was zealously represented by 2 different counsel at her special court-martial and administrative separation board, respectively.

Issue 10 ().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.

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)	19990313 - 19990502  		Active:   
Period of Service Under Review:
Date of Enlistment: 19990503		Years Contracted:  	Date of Discharge:  20021206
Length of Service:  03  Yrs  07  Mths  04  Dys	Lost Time:  Days UA:    Days Confined:  
Education Level:  	Age at Enlistment:  	AFQT:  53	MOS:  0612  Highest Rank:  
Proficiency/Conduct marks (# of occasions):	4.3(10)/3.8(10)	Fitness reports:   
Awards and Decorations (per DD 214):  NATIONAL DEFENSE SERVICE MEDAL

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

20011012:	NJP -- Viol UCMJ Art. 86 - Fail to go to appointed place of duty, Art. 91 - Disrespectful language to NCO.
	Awarded - FOP ($653.00) for (2 mths), 1 mth susp for 2 mths; Restr for (45 days); Extra duties (45 days). 

20011024:	MARCORSEPMAN 6105 counseling for violation of Article 91 and 86.

20011217:	Applicant to light duty:  No repetitive lifting >20 lbs, no gear on shoulders, run at own pace, no pull/push-ups.

20011227:	Medical Board diagnosed Applicant with Hypoplastic Scapula Syndrome, EPTE, SA, CD; Cervical pain, DNEPTE, CD; Trapezius spasm, DNEPTE, CD.  Referred to PEB.

20020604:	SPCM -- Viol UCMJ Art. 86 (2 specs) - (1) Fail to go (2) Unauthorized absence from appointed place of duty; Art. 92 - Fail to obey a lawful order by refusing to throw live grenade.
	Awarded -  RIR (E-2); Hard Labor without confinement for (45 days), Restr for (45 days).

20020708:	MARCORSEPMAN 6105 counseling for violating the UCMJ.

Discharge Process

Date Notified:	20020925
Basis for Discharge:	 DUE TO 
Least Favorable Characterization:	
Commanding Officer’s Intended Recommendation:	

Date Applicant Responded to Notification:		20020926
Rights Elected at Notification:
	Consult with Counsel			
	Obtain Copies of Documents		
	Submit Statement(s) (date)			  (20020825)
	Administrative Board			

Administrative Board Date:	20021025
              Findings, by preponderance of the evidence:	BY   DUE TO  .
	BY  SEPARATION  WARRANTED.
              Recommendation on Separation: 	BY   6 MONTHS
              Recommendation on Characterization:	BY  

Commanding Officer Recommendation (date):	 (20020930)
SJA review (date):	
Separation Authority (date):	COMMANDER, 1ST MARINE DIVISION (REIN) (20021122)
              Basis for discharge directed:	 DUE TO:  
              Characterization directed:	
Date Applicant Discharged:	20021206

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 P1900.16F), effective
1 September 2001 until Present. 

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.

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