ex-, USMC
MD07-00455

Current Discharge and Applicant’s Request

Application Received:  20070220 	Characterization Received:  
Narrative Reason:  MISCONDUCT 		Authority:  MARCORSEPMAN 6210.3

Applicant’s Request:	Characterization change to:  
			Narrative Reason change to: 
Applicant’s Issues:	1. Isolated mistake
			2. Ostracized by command

Decision

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

Date:  20071025  					Location:  Washington D.C.  

Discussion

Issues 1 &2: ().  The Applicant contends that his problems were attributed to being ostracized by his unit and an isolated incident.  While he may feel that this was the underlying cause of his misconduct, the record clearly reflects his willful misconduct on more than one occasion and demonstrated he was unfit for further service.  The evidence of record did not show that the Applicant was either 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.  An 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 three retention warnings, two nonjudicial punishments (NJP) for violation of the Uniform Code of Military Justice (UCMJ), Article 86 (Unauthorized absence) and Article 92 (Failure to obey an order), and a Summary Court-Martial for violation of the UCMJ, Article 86, Article 89 (Disrespect toward a superior commissioned officer), Article 92, Article 121 (Larceny) and 134 (Adultery).  Violation of UCMJ Articles 89, 92, 121 and 134 are considered serious offenses for which a punitive discharge is authorized if adjudged by a Special or General Courts Martial.  An upgrade to general (under honorable conditions) would be inappropriate.

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)	20001211 - 2001226  		
Period of Service Under Review:
Date of Enlistment: 2001227		Years Contracted:  ; Extension:  	Date of Discharge:  20040326
Length of Service:  3  Yrs  3  Mths  00  Dys	Lost Time:  Days UA:  2  Days Confined:  24
Education Level:  12L	Age at Enlistment:  18	AFQT:     91	MOS:0311        Highest Rank:  
Proficiency/Conduct marks (# of occasions):	     (NONE FOUND INRECORD)  Fitness reports:   
Awards and Decorations (per DD 214):  ARMED FORCES EXPEDITIONARY MEDAL, SEA SERVICE DEPLOYMENT RIBBON, NATIONAL DEFENSE MEDAL, PRESIDENTIAL UNIT CITATION, RIFLE QUALIFICATION BADGE (EXPERT).

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

20010702:	Applicant counseled concerning an alcohol-related incident specifically getting drunk and going into an unauthorized absence status.  Applicant chose not to make a statement.

20010726:	NJP -- Viol UCMJ Art. 86 – Unauthorized absence 20010716-20010719.
	Awarded - FOP ($266) for (1 month); Restr for (14 days).  FOP suspended for 4 months.

20010726:	Applicant counseled for being unauthorized absence from his place of duty.  Applicant advised that failure to take corrective action may result in an administrative separation or limitation on further service.  Applicant chose not to make a statement.

20011108:	Applicant acknowledges he is not recommended for promotion to Lance Corporal due to NJP suspension.

20020815:	Applicant acknowledges he is not recommended for promotion to Corporal due to pending NJP.

20020821:	NJP -- Viol UCMJ Art. 92 - Failure to obey a lawful order.  Awarded - FOP ($304) for (1 month).  

20020821:	Applicant counseled for disobeying a lawful order.  Applicant advised that failure to take corrective action may result in an administrative separation or limitation on further service.  Applicant chose not to make a statement.

20031016:	Medical Record:  Reason for visit: Facial Injury due to fight/altercation:       
	Diagnosis:       
	Recommendation: 

20031201:	MARCORSEPMAN 6105 counseling for pattern of misconduct, violation of Articles 86, 92,121, and 134.  Applicant chose not to make a statement.
 
20040105:	Applicant acknowledges he is not recommended for promotion to Lance Corporal due to recent NJP.

20040105:	Applicant acknowledges he is not recommended for promotion to Corporal due to awaiting a pending court-martial.

20040121:	SCM -- Viol UCMJ Art. 86 Unauthorized Absence. Viol UCMJ Art. 89 Disrespect towards a superior commissioned officer; Viol UCMJ Art. 92 Disobeyed Base Order by storing military ammunition at off base quarters; Viol UCMJ Art. 121 Steal military ammunition; Viol UCMJ Art. 134 Adultery.
	Awarded -  FOP ($795) for ( 1 months); RIR (E-1); Confinement (30 days).

20040123:	Medical Record:  Reason for visit:  Referred by Division Psychiatry for evaluation of personality disorder, anti social tendencies, depression and suicidal ideation.
	Diagnosis:  Diagnosed with alcohol dependence
	Recommendation:  Referral to SARP

Discharge Process

Date Notified:	20040226
Basis for Discharge:	 DUE TO:  
	
Least Favorable Characterization:	
Commanding Officer’s Intended Recommendation:	

Date Applicant Responded to Notification:		20040226
Rights Elected at Notification:
	Consult with Counsel			
	Obtain Copies of Documents		
	Submit Statement(s) (date)			  
	Administrative Board			

Commanding Officer Recommendation (date):	 (20040301)
SJA review (date):	 (20040310)
Separation Authority (date):	CG 2D MARDIV (20040313)
              Basis for discharge directed:	 DUE TO:  
              Characterization directed:	
Date Applicant Discharged:	20040326

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.  Marine Corps Separation and Retirement Manual (MCO P1900.16F), effective 1 September 2001 until Present, Paragraph 6210.3, MISCONDUCT.

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, Articles 89, 92, 121, and 134.

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