ex-, USMC
MD07-00795

Current Discharge and Applicant’s Request

Application Received:  20070516 	Characterization Received:  
Narrative Reason:  MISCONDUCT 	Authority:  MARCORSEPMAN 6210.3

Applicant’s Request:	Characterization change to:  
			Narrative Reason change to: 
Applicant’s Issues:	1. Characterization not warranted by overall service

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 1 (). A general (under honorable conditions) discharge is warranted when the quality of the member’s service has been honest and faithful but significant negative aspects of the member’s conduct or performance of duty outweighed the positive aspects of the member’s service record.  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 4 retention warnings, 3 nonjudicial punishments for violations of the Uniform Code of Military Justice (UCMJ), Article 86, and 2 summary courts-martial for violations of the UCMJ, Article 121.  Violations of Article 121 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.  

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)	19930528 - 19930811  		Active:   	
Period of Service Under Review:
Date of Enlistment: 19930812	Years Contracted:  ; Extension:  	Date of Discharge:  19961107
Length of Service:  03  Yrs  02  Mths  26  Dys	Lost Time:  Days UA:    Days Confined:  
Education Level:  	Age at Enlistment:  	AFQT:  88	MOS:  2515  Highest Rank:  
Proficiency/Conduct marks (# of occasions):	3.8(9)/3.6(9)	Fitness reports:   
Awards and Decorations (per DD 214):  Rifle , NDSM, SSDR, LoA

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

19941007:	MARCORSEPMAN 6105 counseling for failure to maintain BEQ clean in accordance with regulations.

19950326:	MARCORSEPMAN 6105 counseling for conduct unbecoming and prejudicial to good order and discipline.

19950411:	NJP -- Viol UCMJ Art. 86 – Failure to go to formation on 19950330.
	Awarded - FOP ($232.00) for (1 months); Restr for (7 days), susp 3 months; Extra duties (7 days).

19950411:	MARCORSEPMAN 6105 counseling for several UAs due to oversleeping.

19950531:	NJP -- Viol UCMJ Art. 86 – Failure to go to Battalion hike on 19950518.
	Awarded - FOP ($478.00) for (1 months); RIR (E-2); Restr for (45 days); Extra duties (45 days).

19950531:	MARCORSEPMAN 6105 counseling for UA.

19951010:	NJP -- Viol UCMJ Art. 86 (3 specs) – Failure to go 19950908 (2x) and 19950909; Art 91 – Disobeyed Sgt by failing to have proper uniforms prepared.
	Awarded - FOP ($478.00) for (2 months); RIR (E-1), susp 6 months; CCU for (30 days).

19960206:	SCM -- Viol UCMJ Art. 121 (3 specs) – 19950717 steal military property @$538 (flak jacket, watch cap, pair black glove shells, green blanket), 19951015 steal 4 panties from LCpl M_, and 19951022 steal 7 panties and 6 bras from LCpl S_ and 5 panties and 3 bras from LCpl R_.
	Awarded -  FOP ($569.00) for (1 months); RIR (E-1); Confinement (30 days).
	CA action 19960226: Approved, except FIP susp 6 months.

19960206:	To confinement.

19960301:	From confinement.

19960722:	SCM -- Viol UCMJ Art. 121 (5 specs) – steal on different occasions 4 pairs female undergarments and dress, 3 pairs female undergarments, 5 pairs female undergarments, 2 female bathing suits and dress blue skirt, 6 pairs female undergarments, and 7 pairs female undergarments.
	Awarded -  FOP ($580.00) for (1 months); Confinement (30 days).
	CA action 19960226: Approved.

19960722:	To confinement.

19960815:	From confinement.

Discharge Process

Date Notified:	19960916
Basis for Discharge:	 DUE TO 
Least Favorable Characterization:	
Commanding Officer’s Intended Recommendation:	

Date Applicant Responded to Notification:		19960916
Rights Elected at Notification:
	Consult with Counsel			
	Obtain Copies of Documents		
	Submit Statement(s) (date)			 
	Administrative Board			

Commanding Officer Recommendation (date):	 (19960916)
SJA review (date):	 (19961001)
Separation Authority (date):	CG, II MEF (19961021)
              Basis for discharge directed:	 DUE TO:  
              Characterization directed:	
Date Applicant Discharged:	19961107

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 18 Aug 95 until 30 Jan 97.

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, Article 121, Larceny.

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