ex-, USMC

Current Discharge and Applicant’s Request

Application Received: 20071205
Characterization of Service Received: 
Narrative Reason for Discharge:  DUE TO PATTERN MISCONDUCT
Authority for Discharge: MARCORSEPMAN 

Applicant’s Request: Characterization change to:  
		      Narrative Reason change to: 

Summary of Service

Prior Service:
Inactive: USMCR (DEP)	19820717 - 19830630  		Active:     19830701 – 19870427  HON

Period of Service Under Review:
Date of Enlistment: 19870428		   Period of Enlistment:   Years   Months		Date of Discharge:  19921204
Length of Service:    Yrs    Mths  06  Dys	Education Level:  	Age at Enlistment:  	AFQT:  33
MOS:  1391  	Highest Rank:   			Fitness Reports:  
Awards and Decorations (per DD 214):  Rifle  LOA GCM NDSM MM(3) NUC

NJPs:	
19871030: Article 92 (Violate a lawful order).
                  Awarded:  .  Susp -   Appealed 19871104  Appealed denied 19871211.

19871223: Article 86 (Absent from appointed place of duty 1300, 19871201 to 0730, 19871203).
                  Awarded:   .  Susp -  .

19910918: Article 123 (Uttering worthless checks). 
                  Awarded: .  Susp - .

19920918: Article 123 (2 specifications) (Make, draw, or utter, without sufficient funds in banking institution, a
                   worthless check).
                  Awarded:  .  Susp - .

6105 Counseling: 
19910523: For substandard personal conduct and unprofessional performance as a Marine NCO.
19910625: For inability to take care of his personal finances.
19920508: For misconduct inability to take care of personal finances and its interference with normal work routine. 

Administrative Corrections to the Applicant’s DD 214

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

	  “CONTINUOUS HONORABLE ACTIVE SERVICE 19830701-19870427”
	
The NDRB will recommend to the Commandant of the Marine Corps that the DD 214 be corrected as appropriate.

Types of Documents Submitted/reviewed

Related to Military Service:	DD 214:  	Service and/or Medical Record:  		Other Records:  

Related to Post-Service Period:	
	Employment:  			Finances:  			Education/Training:	
	Health/Medical Records:		Substance Abuse:			Criminal Records:	
	Family/Personal Status: 		Community Service:  		References:  		
Additional Statements From Applicant:  		From Representation:  		From Member of Congress:  
Other Documentation (Describe): 

Pertinent Regulation/Law
A.  Paragraph 6210, Misconduct, 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 86, 92, and 123.

DEPARTMENT OF THE NAVY
NAVAL DISCHARGE REVIEW BOARD (NDRB)
DISCHARGE REVIEW DECISIONAL DOCUMENT

Applicant’s Issues

1.   Misconduct was not his fault.
2.  The Convening Authority was unduly influenced by an NJP from his previous enlistment.
3.  Applicant feels that his overall quality of service did not rate an Under Other Than Honorable Conditions discharge characterization.

Decision

Date:  20080904		Location:  Washington D.C.	 Representation:  NONE

By a vote of  the Characterization shall  .
By a vote of  the Narrative Reason shall  MISCONDUCT  (PATTERN OF MISCONDUCT).

Discussion

:()  .  The Applicant claims the misconduct was not his fault.  The first set of bad checks written were not done willfully by him, but were done because his wife had power of attorney and he was unaware she was also writing checks.  The second incident of bad checks was at a time when he was faced with severe financial difficulties and he thought that he had sufficient funds to cover them.  

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.  The Applicant record of service was marred by 3 retention warning counseling’s and 4 non-judicial punishments for violations of the Uniform Code of Military Justice (UCMJ), Articles 92, 86, and 123 (2 specifications).  The record reflects the Applicant was counseled on 25 June 1991 for his inability to take care of his personal finances; this was three months before his non-judicial punishment (NJP) on September 18, 1991 for the bad checks his wife allegedly wrote.  The counseling shows he already had an established pattern of financial mismanagement before his first NJP.  The Applicant did not produce a copy of the Power of Attorney or copies of checks written by his wife to support his claim that she was writing checks without his knowledge.  Concerning his second claim, since he already received NJP for uttering worthless checks and also received a retention warning counseling, the Applicant should have been more watchful of his account balance before he wrote additional bad checks.  This is especially relevant since he admits he was under financial strain at that time.   He does not provide any evidence to demonstrate his financial strain or show his misconduct was not a result of his own negligence.  The Board determined an upgrade based on the foundation the misconduct was not the Applicant’s fault would be inappropriate considering the numerous counseling sessions he received. 

: ()  .  The Applicant claims that the Convening Authority (CA) was improperly influenced by his knowledge of an NJP which occurred on 23 October 1986, during his first enlistment.  Per the Marine Corps Separation and Retirement Manual, MCO P1900.16F, para 6309 1.c.6, the CA can look at a Marine’s entire service record when considering the issue of retention and separation.  What he cannot do is consider misconduct from a prior enlistment to determine the character of service.  The Applicant’s second enlistment was marred by four non-judicial punishments and three retention warning counseling’s.  Those infractions are in themselves sufficient grounds for his receiving an “Under Other Than Honorable” Discharge.  The Board determined an upgrade would be inappropriate.

: ()  .  The Applicant feels his overall service record rates a “General (Under Honorable Conditions)” characterization.  When a Marine’s service has been honest and faithful, it is appropriate to characterize that service under “Honorable” conditions.   Characterization of service as “General (Under Honorable Conditions)” is warranted when a member’s service has been honest and faithful but significant negative aspects of a member's conduct or performance of duty outweigh the positive aspects of the member's military record.  An “Under Other Than Honorable Conditions” discharge is warranted when the basis for separation is commission or omission of an act which constitutes a significant departure from the 

conduct expected of a Marine.  As referenced above, the Applicant was the subject of four non-judicial punishments and three retention warning counseling’s during a five years period.  He was found guilty of violations of UCMJ, Articles 86, 92 and 123.  
These are considered serious offenses punishable by a bad conduct or dishonorable discharge and up  imprisonment if adjudicated as part of the sentence upon conviction by a special or general court-martial.  This is not the record of service we expect from Marines holding the rank of Sergeant and with the length of service the Applicant had.  It constitutes a significant departure from conduct expected of a noncommissioned officer.  The Board determined an upgrade would be inappropriate. 

After a thorough review of the available evidence, to include the Applicant’s Summary of Service,  Record, Discharge Process and evidence submitted by the Applicant, the Board found 

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 or is referred to a court-martial 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 other medical related reasons.”  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 special 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.  The NDRB does not have the jurisdictional authority to review a discharge or dismissal resulting from a general court-martial.

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