ex-, USMC
 MD07-01013

Current Discharge and Applicant’s Request

Application Received:  20070627 	Characterization Received:  
Narrative Reason:  CONDUCT TRIABLE BY COURTS-MARTIAL (GOOD OF THE SERVICE 	
Authority:  MARCORSEPMAN 6419

Applicant’s Request:	Characterization change to:  
			Narrative Reason change to: 
Applicant’s Issues:	1. Desire to re-enlist
			2. Officer’s order was unreasonable and malicious
			3. Discriminated against because of language problems
			4. Denied due process, discharged without a hearing on facts
			5. Post-service conduct

Decision

By a vote of  the Characterization shall  .
By a vote of  the Narrative Reason shall  CONDUCT TRIABLE BY COURTS-MARTIAL (request for discharge for the good of the service)

Date:  20080110     		Location:  Washington D.C.	 Representation:  

Discussion

:   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 ().  The Applicant claims that he was discharged for disobeying an order to get his haircut, and further contends that the order was unreasonable because it was given on a Sunday when he could not get to a barber shop.  The Board determined that the Applicant was charged with violating Article 90 of the Uniform Code of Military Justice by disobeying an order to get his haircut; however, he was separated in lieu of trial by court-martial at his own request.  In that request, the Applicant admitted guilt to violating Articles 86 and 92 of the UCMJ in regard to misconduct unrelated to the alleged violation of Article 90.  Therefore, the Board determined that this issue was not relevant on the Applicant’s reason for discharge.

Issue 3 ().  The Applicant contends that because of cultural differences and language barriers stemming from his being from Jamaica he had difficulty understanding his duties and was discriminated against.  The government is entitled to a presumption of regularity in the conduct of its affairs, and the Applicant’s unsubstantiated allegation of discrimination is not sufficient to overcome that presumption.  The Board noted that the Applicant successfully enlisted in the Marine Corps, completed recruit training, mastered the training requirements of the School of Infantry, and graduated from the Artillery Course. The Board found no reason to believe that the Applicant’s subsequent repeated unauthorized absences and other misconduct was a result of his inability to understand his duties.

Issue 4 (). The Applicant was not denied any rights.  The Applicant, with the advice of counsel, voluntarily submitted a request for administrative separation in lieu of trial by court-martial, rather than exercise his rights in that forum.  He admitted guilt to an offense under the UCMJ for which a punitive discharge is authorized upon conviction at special or general court-martial.  The record clearly demonstrates that all due process requirements were met.  

Issue 5 (). 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 Board noted that the Applicant’s post service documents and initial mailing address indicated that the Applicant had been incarcerated in a South Carolina prison, and advises the Applicant that post-service criminal activity is generally not considered favorably in assessing the appropriateness of recharacterizing a discharge.  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.

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  

Administrative Corrections to the Applicant’s DD 214

The NDRB did note administrative error(s) on the original DD Form 214:

  “CONDUCT TRIABLE BY COURTS-MARTIAL (request for discharge for the good of the service)”
	
The NDRB will recommend to the Commandant of the Marine Corps that the DD 214 be corrected as appropriate. 

Summary of Service

Prior Service:
Inactive: USMCR (DEP)	19910524 - 19911022  		Active:   	
Period of Service Under Review:
Date of Enlistment: 19911023		Years Contracted:  ; Extension:  		Date of Discharge:  19930525
Length of Service:  01  Yrs  07  Mths  03  Dys			Lost Time:  Days UA:  21  Days Confined:  
Education Level:  	Age at Enlistment:  	AFQT:  35	MOS:  0811  Highest Rank:  
Proficiency/Conduct marks (# of occasions):	3.5(4)/3.5(4)			Fitness reports:   
Awards and Decorations (per DD 214):  Rifle , NDSM, MERITORIOUS MAST

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

19920812:	NJP -- Viol UCMJ Art. 86 – Failure to go to Guard Mount 19920803.
	Awarded - FOP ($198.00) for (1 months); Restr for (14 days) susp 6 months; Extra duties (14 days) susp 6 months.

19920916:	NJP -- Viol UCMJ Art. 86 – Failure to go to Battalion supernumary 19920831.
	Awarded - FOP ($205.00) for (1 months); Restr for (14 days); Extra duties (14 days).

19920916:	MARCORSEPMAN 6105 counseling for frequent violations of UCMJ, Article 86.

19921105:	NJP -- Viol UCMJ Art. 86 – Unauthorized absence 19920917 – 19921008; Art 134 – Break restriction on 19920917.
	Awarded - FOP ($392.00) for (2 months); RIR (E-1); Restr for (45 days); Extra duties (45 days).

Discharge Process

Charge(s) Preferred:  19930330
Charge(s) and Specification(s):
	Article 86: Fail to go to restriction muster 19930213
	Article 90: Wilfully disobey order to get regulation haircut 19930213
	Article 92: Fail to obey order on 19930121 by not logging in female guest and having guest in barracks after hours 

Date Applicant Submitted SILT request:		19930427
	Consulted with or Waived Counsel:		
	Acknowledged Understanding Elements:	
	Acknowledged Guilt to:			Article(s) 86, 92 
		BCD/DD authorized for offense(s)	YES, Article 92
	Acknowledged Consequences of OTH:	
	Type of Characterization Requested:	

Commanding Officer Recommendation (date):	   							(19930428)
Separation Authority (date):			COMMANDER, 2D MARINE DIVISION (19930505)
	Reason for Discharge directed:		
	Characterization directed:			
Date Applicant Discharged:			19930525

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)  Set Free Prison Ministry certificate; Inmate evaluation; Training certificates  

Pertinent Regulation/Law

A.  Paragraph 6419, SEPARATION IN LIEU OF TRIAL BY COURT-MARTIAL, of the Marine Corps Separation and Retirement Manual, (MCO P1900.16D), effective 27 Jun 89 until 17 Aug 95.

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 92, Failure to obey order or regulation.

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