ex-2ND LT, USMC
MD07-00608

Current Discharge and Applicant’s Request

Application Received:  20070403 	Characterization Received:  
Narrative Reason:  UNACCEPTABLE CONDUCT 	Authority:  MARCORSEPMAN 4102 & SECNAVINST 1920.65B

Applicant’s Request:	Characterization change to:  
			Narrative Reason change to: 
Applicant’s Issues:	1. Discharge was inequitable based on an isolated incident in eight years of service
			2. Post Service

Decision

By a vote of  the Characterization shall  .	
By a vote of  the Narrative Reason shall  UNACCEPTABLE CONDUCT

Date:  20071120  					Location:  Washington D.C.  

Discussion

Issue 1: ().  The Applicant contends that the characterization of discharge was inequitable based on an isolated incident in eight years of service.  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 twice 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 two nonjudicial punishments (NJP) for a violation of the Uniform Code of Military Justice (UCMJ), Article 92 (Failure to obey order, regulation), and Article 111 (Drunken or reckless driving).  Violation of UCMJ Articles 92 and 111 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.  

Issue 2 (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 two character references, four award certificates and his statement of post-service employment.  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.   

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		20010915 - 20011201
	USANG (DEP)	19940826 - 19950703  		
			19950704 - 19970630  
		19970701 - 20000914  
Active:   	      
Period of Service Under Review:
Date of Commission: 20000915	Years Contracted:  INDEF		Date of Discharge:  20020729
Length of Service:  1  Yrs  7  Mths  27  Dys	Lost Time:  Days UA:    Days Confined:  
Education Level:  16	Age at Commission:  24	AFQT:  NOT FOUND IN RECORD	MOS:  0302  
Highest Rank:  2ND LT	Fitness reports:   
Awards and Decorations (per DD 214):  ARMY ACHIEVEMENT MEDAL, NATIONAL DEFENSE SERVICE MEDAL, RIFLE SHARPSHOOTER BADGE, PISTOL SHARPSHOOTER BADGE

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

20000915:	Applicant commissioned as a 2ND Lieutenant.

20001202:	Applicant began active duty for training.

20011015:	NJP -- Viol UCMJ Art. 111 – Drunken or reckless driving.
	Awarded - FOP of $250 for two months and a Written Reprimand.

2001107:	Commanding General, 1ST Marine Division submitted a Report of Nonjudicial Punishment to the Commandant recommending that the Applicant not be required to show cause for retention.

20011231:	Commandant of the Marine Corps terminated Administrative Separation Proceedings in Applicant’s case on the basis that his actions did not warrant administrative separation from the Marine Corps.

20020215:	Applicant taken into custody for speeding and driving on base while his base driving privileges were suspended.

20020410:	NJP -- Viol UCMJ Art. 92 – Failure to obey an order revoking his base driving privileges.
	Awarded - FOP $1000 per month for two months and a Letter of Censure.

20020421:	Commanding General, 1ST Marine Division submitted a Report of Nonjudicial Punishment to the Commandant, via Commanding General, 1ST Marine Expeditionary Force, recommending that the Applicant not be required to show cause but that he be administratively separated with a characterization of service as General (Under Honorable Conditions).  The letter indicated that the Applicant had been provided a notification of intent to administratively process him for separation and that he had been afforded all rights related to the nonjudicial punishment and recommendation for discharge.

20020426:	Commanding General, 1ST Marine Expeditionary Force endorsed the recommendation of Commanding General, 1ST Marine Division and recommended that the Applicant be discharged using notification procedure with a characterization of service as General (Under Honorable Conditions).

20020617:	Deputy Commandant (Manpower and Reserve Affairs) recommended to the Assistant Secretary of the Navy (Manpower and Reserve Affairs) that  with characterization of service as 

20020702:	Assistant Secretary of the Navy (Manpower and Reserve Affairs) approved Applicant’s discharge by reason of INVOLUNTARY DISCHARGE- UNACCEPTABLE CONDUCT with characterization of service as .

20020729:	Applicant discharged this date.

Officer administrative separation

Discharge Process

Applicant provided written notice of administrative separation proceedings:	20020410
Recommended characterization:  						General (Under honorable conditions)
Applicant signs acknowledgement:						20020425
CG 1st Marie Division endorsement:  Administratively Separate		20020426
Recommended characterization:  						General (Under honorable conditions)
CG I MEF endorsement:  Administratively Separate				20020521
Recommended characterization:  						General (Under honorable conditions)
DC, M&RA endorsement:  Administratively Separate				20020617
Recommended characterization:  						General (Under honorable conditions)
ASN M&RA:  Approved							20020702
Applicant Discharged:  20020729			

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 1920.6B (ADMINISTRATIVE SEPARATION OF OFFICERS), effective 13 December 1999 until 14 December 2005 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, Articles 92 and 111.

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