ex-, USMC

Current Discharge and Applicant’s Request

Application Received:  20080205
Characterization of Service Received:  
Narrative Reason for Discharge:  Misconduct due to minor disciplinary infractions
Authority for Discharge:  MARCORSEPMAN 

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

Summary of Service

Prior Service:
Inactive: USMCR (DEP)	19970418 - 19970721  		Active:   

Period of Service Under Review:
Date of Enlistment: 19970722	   Period of Enlistment:   Years   Months	Date of Discharge:  19990823
Length of Service:    Yrs    Mths  02  Dys	Education Level:  	Age at Enlistment:  	AFQT:  34
MOS:  0311	Highest Rank:     Proficiency/Conduct Marks (# of occasions):  ()/ ()
Awards and Decorations (per DD 214):  Rifle    KCM W/BRONZE STAR

Periods of CONF:  19990629-19990712 (14 days in Onslow County Jail), 
                               19990806-19990819 (14 days).

NJPs:	
19981125:  Article 123a (Made a check to the Disbursing Office with insufficient funds for payment).
                   Awarded -  .  Susp - .  Susp vacated 19990430.
19990430:  Article 123a (Made twelve (12) checks to Disbursing Office in the amount of $456.60 with insufficient  
                   funds for payment).
                   Awarded -   .  Susp - .

19990601:  Article 92 (Fail to obey an order by having visitors while on restriction).
                   Article 121 (Steal calling card services, a value of $447.62).
                   Article 134 (Broke restriction), 2 specifications.
                   Sentence -  (19990601-19990624 (24 days)) .
                   CA Action (19991015): The specifications to which there were findings of guilt stated under the UCMJ 
                   except that the specifications under charge II (larceny) failed to state an offense.  I disapprove the finding 
                   of guilty to charge II (larceny) and it specification, and reassess the sentence.  Only so much of the  
                   sentence as provides for confinement for 30 days and forfeiture of 439.00 pay per month for 1 month is 
                   approved and ordered executed.

SPCMs:	

CC:	

6105 Counseling: 	1
19980623:	For display of poor decision making skills and demonstrates a lack of responsibility.  PFC knowingly displayed poor judgment.
19980819:	For poor decision making and lack of responsibility.
19990415:	For multiple infractions of the UCMJ resulting in several NJP proceedings.

Pending charges:		Four criminal summonses in Onslow County for worthless checks and two speeding tickets.

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) 

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

Applicant’s Issues

1.  Applicant feels his discharge should be based on his Medical problems vice disciplinary reasons.
2.  Correction to DD214.

Decision

Date:  20080807		Location:  Washington D.C.	 Representation:  

By a vote of  the Characterization shall  .
By a vote of  the Narrative Reason shall  MISCONDUCT (MINOR DISCIPLINARY INFRACTIONS).

Discussion

Issue 1: ()  .  The Applicant contends his problems may be attributed to his diagnosis of depression and as a result he should have been given a medical discharge vice an administrative discharge for Misconduct.  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’s record of service was marred by three retention counseling in June 1998, August 1998 and April 1999 respectively for poor decision making skills, poor judgment and multiple infractions of the Uniform Code of Military Justice.  He was the subject of two non-judicial punishments and a Summary Court-Martial in Nov 1998, April 1999 and June 1999, respectively for violations of Articles 92, 121, 123a and 134, which are considered serious offenses punishable by a bad conduct or dishonorable discharge and up to   imprisonment if adjudicated as part of the sentence upon conviction by a special or general court-martial.  The command did not pursue a punitive discharge but opted instead for an administration separation.  

The Applicant was hospitalized at Camp LeJeune Naval Hospital on 26 July 1999 for suicidal ideation (vague gesture) while intoxicated.   The Applicant claims he was raped while in the Onslow County Jail (mid-Jul 1999), approximately ten days before his hospitalization for depression. The Applicant presents no evidence to support his claim and a review of the medical records indicates the examining physician found no evidence of physical trauma that would normally be associated with a male on male rape.  The Applicant’s medical records did not show he underwent counseling for the alleged rape.  The Applicant’s final diagnosis was Alcohol Abuse, with personality disorder and anti-social behavior: he was deemed unsuitable for continued military service.  At the time of his hospitalization, the Applicant was already being processed for the misconduct administrative separation.  While he may feel his depression was the underlying cause of his misconduct, the evidence of record did not show that the Applicant was either not responsible for his conduct or that he should not be held accountable for his actions based on depression as the result of being raped.  It should also be noted the Applicant’s disciplinary infractions began prior to his incarceration in Onslow County Jail.   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 

Issue 2:  (Equity).  The Applicants asks that his Navy Unit Commendation Kosovo Campaign Medal (KC) with bronze star be added to his DD 214 via the issuance of a DD 215 correction.  His Service Records show that the DD215 has already been issued.

Pertinent Regulation/Law

A.  Paragraph 6210, MISCONDUCT, of the Marine Corps Separation and Retirement Manual, (MCO P1900.16E), effective 
31 January 1997 until 31 August 2001.

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  92, 121, 123a 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 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