ex-, USMC
MD07-00751

Current Discharge and Applicant’s Request

Application Received:  20070511 	Characterization Received:  
Narrative Reason:  MISCONDUCT 	Authority:  MARCORSEPMAN 6210.3

Applicant’s Request:	Characterization change to:  
			Narrative Reason change to: 
Applicant’s Issues:	1. RE-Code change
			2. G.I. Bill
			3. Characterization not warranted by positive aspects of performance
			4. Post service conduct.

Decision

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

Date:  20071212		Location:  Washington D.C.	 Representation:  

Discussion

Issue(s) 1 - 2:   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 3 ().  When the quality of a member’s service generally meets the standard of acceptable conduct and performance for naval personnel, or is otherwise so meritorious that any other characterization of service would be clearly inappropriate, an honorable characterization of service is warranted.  When the quality of the member’s service has been honest and faithful; however, significant negative aspects of the member’s conduct or performance of duty outweighed the positive aspects of the member’s service record, a general (under honorable conditions) discharge is warranted.  A discharge under other than honorable conditions is warranted when a member engages in conduct involving one or more acts or omissions that constitute a significant departure from the conduct expected of members of the naval service.  The Applicant’s service was marred by three retention warnings and four nonjudicial punishments for violations of the Uniform Code of Military Justice, Articles 86, 90, 91, 92 and 111.  Violations of Articles 90, 91, 92 and 111 are considered serious offenses for which a punitive discharge is authorized upon conviction at special or general court-martial.  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 and falls far short of that required for an upgrade of his characterization of service.  

Issue 4 (). The Applicant claims to have matured and learned from his mistakes, which the Board hopes is the case.  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 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 could 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.  As of this time, the Applicant has not provided any post-service documentation 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)	20020725 - 20020902  		Active:   	
Period of Service Under Review:
Date of Enlistment: 20020903		Years Contracted:  ; Extension:  		Date of Discharge:  20051222
Length of Service:  03  Yrs  03  Mths  20  Dys		Lost Time:  Days UA:    Days Confined:  
Education Level:   		Age at Enlistment:   	AFQT: 63  		MOS: 3043 
Highest Rank:  	Proficiency/Conduct marks (# of occasions):	4.3/4.0 
Awards and Decorations (per DD 214):  NDSM, GWOTSM, COA (2), LOA (3), CERTCOM (3), Rifle   

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

20030226:	NJP -- Viol UCMJ Art. 90 – 20030224, disobey command from Captain to continue to train.
	Awarded - FOP ($241.00) for (1 month); Restr for (6 days); Extra duties (6 days).

20030226:	MARCORSEPMAN 6105 counseling for violation of Article 90 by refusing to train.

20030414:	NJP -- Viol UCMJ Art. 92 (2 Specs) – 20030329, viewing pornographic websites on a government computer and downloading and installing unauthorized software on a government computer.
	Awarded - FOP ($644.00) for (2 months); RIR (E-1) susp 6 months.

20030812:	MARCORSEPMAN 6105 counseling for violation of Article 92. 

20040326:	NJP -- Viol UCMJ Art. 86 – Failed to go on 20040311; Art. 91 (2 specs) – 20040311, disobeyed Sgt and disrespectful to 3 NCOs by screaming, “F_ you, f_ off, f_ pussy, you’re a motherf_.”
	Awarded - FOP ($668.00) for (2 months) susp 6 months; RIR (E-2); Restr for (45 days); Extra duties (45 days) susp 6 months.

20040330:	MARCORSEPMAN 6105 counseling for violation of Article(s) 86, of the UCMJ, for failing to be at your appointed place of duty, disobeying and order from a NCO, and being disrespectful to a NCO, along with your immaturity and lack of judgment.

20050809:	NJP -- Viol UCMJ Art. 92 – Violate BO P5560.2L by operating a government vehicle without a valid drivers license; viol UCMJ Art. 111 – Operate a vehicle in a reckless manner by driving 20 mph over the posted speed causing him to wreck a government vehicle.
	Awarded - FOP ($692.00) for (2 months); RIR (E-2); Restr for (45 days); Extra duties (45 days).

Discharge Process

Date Notified:	20050831
Basis for Discharge:	 DUE TO 
Least Favorable Characterization:	
Commanding Officer’s Intended Recommendation:	

Date Applicant Responded to Notification:		20050919
Rights Elected at Notification:
	Consult with Counsel			
	Obtain Copies of Documents		
	Submit Statement(s) (date)			NO ELECTION (undated statement submitted)
	Administrative Board			

Commanding Officer Recommendation (date):	 (20050930) SUSPENDED FOR 12 MONTHS
SJA review (date):	 (20051130)
Separation Authority (date):	CG, MARINE CORPS BASE, CAMP LEJEUNE (20051202)
              Basis for discharge directed:	 DUE TO 
              Characterization directed:	
Date Applicant Discharged:	20051222

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 01 Sep 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.

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 90, Assaulting or willfully disobeying superior commissioned officer; 91, Insubordinate conduct toward warrant officer, noncommissioned officer, or petty officer; 92, Failure to obey order or regulation; and 111, Drunken or reckless operation of vehicle, aircraft, or vessel.

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