ex-1ST LT, USMC
MD07-00901

Current Discharge and Applicant’s Request

Application Received:  20070625 	Characterization Received:  
Narrative Reason:  UNACCEPTABLE CONDUCT	Authority:  MCO P1900.16F & SECNAVINST 1920.6C

Applicant’s Request:	Characterization change to:  
			Narrative Reason change to: 
Applicant’s Issues:	1.  Better post service opportunities.
			2.  Unacceptable conduct related material taken out of context.

Decision

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

Date:  20071220         	       Location:  Washington D.C.              Representation:  

Discussion

Issue 1:   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 2 (Equity).  The Applicant contends that the evidence used at her NJP and subsequent administrative proceedings were taken out of context.  The Applicant bears the burden of overcoming this presumption through the presentation of substantial and credible evidence to support her issue.  There is no evidence in the record, nor has the Applicant produced any evidence, to support this contention.  In fact the Applicant did not appeal the NJP and subsequently submitted a qualified resignation request based upon the same non disputed evidence of record.  Proper reviews and recommendations were conducted at the Marine Air Wing, Marine Expeditionary Force, and Commandant of the Marine Corps levels before being confirmed by the Assistant Secretary of the Navy (Manpower and Reserve Affairs).  The Applicant’s statement alone does not overcome the government’s presumption of regularity in this case.    

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)	20001110 - 20030217  
Period of Service Under Review:
Date of Commission: 20030218	Years Contracted:  INDEF; Extension:  	Date of Discharge:  20070105
Length of Service:  3  Yrs  10  Mths  17  Dys	Lost Time:  Days UA:    Days Confined:  
Education Level:  16  	Age at Commission:  22 	AFQT:  NOT FOUND IN RECORD  
MOS:  4302        Highest Rank:  1ST LIEUTENANT 	           Fitness reports:   
Awards and Decorations (per DD 214):  Iraq Campaign Medal, Humanitarian Service Medal  (2nd award), Sea Service Deployment Ribbon, Global War on Terrorism Service Medal, National Defense Service Medal, Certificate of Commendation 
(2nd award), Sharpshooter Rifle Badge, Sharpshooter Pistol Badge.

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

20001110:	Applicant signs Marine Corps policy concerning fraternization.  

20050218:	Applicant promoted to 1st LIEUTENANT.

20060926:	NJP - Viol UCMJ Art(s) 133 - Conduct Unbecoming and 134 - Fraternization.
	Awarded – Written Reprimand.

20060926:	Applicant issued Punitive Letter of Reprimand.
20060929:	Applicant submitted a request for 

20061017:	, 3d Marine Aircraft Wing forwarded Report of Non-judicial Punishment to the Commandant of the Marine Corps.

20061017:	Commanding General, 3d Marine Aircraft Wing forwarded Applicant’s request for qualified resignation with a recommendation that  with characterization of service as general (under honorable conditions).

20061025:	Commanding General, I Marine Expeditionary Force forwarded Applicant’s request for qualified resignation with a recommendation that  with characterization of service as general (under honorable conditions).
 
20061129:	Commandant of the Marine Corps recommended to the Assistant Secretary of the Navy (Manpower and Reserve Affairs) that  with characterization of service as 

20061211:	Assistant Secretary of the Navy (Manpower and Reserve Affairs) approved Applicant’s discharge by reason of UNACCEPTABLE CONDUCT, with characterization of service as ).

20070105:	Applicant discharged.

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 1920.6C (ADMINISTRATIVE SEPARATION OF OFFICERS), effective 15 December 2005 until Present 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 dismissal if adjudged as part of the sentence upon conviction by a special or general court-martial for violation of the UCMJ, Article(s) 133 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