ex-, USMC
MD07-00657

Current Discharge and Applicant’s Request

Application Received:  20070410 	           Characterization Received:  
Narrative Reason:  MISCONDUCT 				        	     Authority:  MARCORSEPMAN 6210.3

Applicant’s Request:	Characterization change to:  
			Narrative Reason change to: 
Applicant’s Issues:	1. Misconduct due to untreated mental issues
			2. Misconduct did not warrant discharge
			3. Post-service conduct

Decision

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

Date:  20071129		Location:  Washington D.C.	 Representation:  

Discussion

Issue 1 (). The Applicant claims that he had mental issues for which he had stopped taking his medication.  The Board found no evidence in the record that the Applicant had been prescribed any medications for any mental health issues.  The Board specifically found that the Applicant, during his pre-enlistment physical examination, denied being on any medications.  While the Applicant may feel that his mental health was the underlying cause of his misconduct, the record clearly reflects his willful misconduct and demonstrates that he was unfit for further service.  The evidence of record did not show that the Applicant was either not responsible for his behavior or that he should not be held accountable for his actions.

Issue 2 ().  The Applicant claims that “the charge that got [him] discharged was totally unfair.”  The Board did not concur.  When a Marine’s service meets acceptable standards of performance and conduct, it is appropriate to characterize that service as honorable.  Characterization of service as under other than honorable conditions is warranted when the reason for separation is based upon behavior, or omission, that constitutes a significant departure from the conduct expected of a Marine.  The Applicant’s service was marred by the award of nonjudicial punishment (NJP) on 4 occasions for violations of the Uniform Code of Military Justice (UCMJ).  The Applicant’s misconduct included unauthorized absence, underage drinking, breaking restriction, disobedience of a staff noncommissioned officer (SNCO), disrespect towards another SNCO, and assault consummated by batteries on 2 different Marines.  Several of these violations are serious offenses for which a punitive discharge is authorized upon conviction at special or general court-martial.  An upgrade to honorable is inappropriate.

Issue 3 (). The Applicant indicates that he is a “new man.” 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.  The Applicant submits a reference letter in support of his claim; unfortunately, however, the Applicant also acknowledges his current civil incarceration for his culpability in the death of another person.  However sincere the Applicant’s current remorse may be, such post-service criminal behavior is inconsistent with a claim of good post-service behavior.  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.

The Board noted that the record did not contain a copy of the required judge advocate review.  The Board presumed that such review in fact occurred in the regular manner, and further determined that even if the review did not occur, the Applicant was not prejudiced in the outcome.  The Applicant’s well documented repeated misconduct warranted the discharge received. 

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)	19960221 - 19960225  		Active:   	
Period of Service Under Review:
Date of Enlistment: 19960226	Years Contracted:  ; Extension:  	Date of Discharge:  19970213
Length of Service:  00  Yrs  11  Mths  18  Dys	Lost Time:  Days UA:    Days Confined:  
Education Level:  	Age at Enlistment:  	AFQT:  71	MOS:  none  Highest Rank:  
Proficiency/Conduct marks (# of occasions):	4.0(1)/4.0(1)	Fitness reports:   
Awards and Decorations (per DD 214):  RIFLE SS

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

19960820:	NJP -- Viol UCMJ Art. 86 – failure to go on 19960729, 19960810; Art 134 – underage drinking 19960810.
	Awarded - FOP ($218.00) for (1 months); Restr for (30 days).

19961003:	NJP -- Viol UCMJ Art. 86 – failure to go on 19960824; Art 91 (2 specs) – disobeyed SSgt 19960825, disrespectful (“F_ you, I don’t need to take this s_ from you”) to SSgt 19960915; Art 128 – assaulted female PFC (pushed in chest w/hands and struck in face w/fist) 19960916; Art 134 – broke restriction 19960915.
	Awarded - FOP ($217.00) for (2 months); Restr for (30 days); Extra duties (30 days).

19961004:	MARCORSEPMAN 6105 counseling for violations of Articles 86, 91, 128 and 134.  Applicant chose to make a statement.  Statement not found in record.

19961024:	NJP -- Viol UCMJ Art. 86 – failure to go on 19961004, 19961006 and 19961013.
	Awarded - FOP ($200.00) for (1 months); RIR (paygrade); Restr for (30 days); Extra duties (# days).

19961123:	MARCORSEPMAN 6105 counseling for failure to go on 19961004, 19961006 and 19961013.

19961202:	NJP -- Viol UCMJ Art. 128 – assault PFC (struck in jaw w/fist). 
	Awarded - FOP ($350.00) for (2 months); Restr for (60 days).

Discharge Process

Date Notified:	19970110
Basis for Discharge:	 DUE TO:  
Least Favorable Characterization:	
Commanding Officer’s Intended Recommendation:	

Date Applicant Responded to Notification:		19970110
Rights Elected at Notification:
	Consult with Counsel			
	Obtain Copies of Documents		
	Submit Statement(s) (date)			  (19970110, first page only in record)
	Administrative Board			

Commanding Officer Recommendation (date):	 (19970115)
SJA review (date):	
Separation Authority (date):	COMMANDER, MCB CAMP LEJEUNE (undated)
              Basis for discharge directed:	 DUE TO  
              Characterization directed:	
Date Applicant Discharged:	19970213

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 P1900.16E), effective 31 Jan 97 until 31 Aug 01.

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 91, Insubordinate conduct toward warrant officer, noncommissioned officer, or petty officer; and 128, Assault.

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