ex-, USMC

Current Discharge and Applicant’s Request

Application Received:  20080604
Characterization of Service Received:  
Narrative Reason for Discharge:  
Authority for Discharge:  MARCORSEPMAN 

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

Summary of Service

Prior Service:
Inactive: USMCR (DEP)	20040113 - 20040815  		Active:   

Period of Service Under Review:
Date of Enlistment: 20040816	Period of Enlistment:   Years   Months	Date of Discharge:  20070928
Length of Service:    Yrs    Mths  13  Dys	Education Level:  	Age at Enlistment:  
MOS:  6217      Highest Rank:        Fitness Reports:         AFQT:  62
Proficiency/Conduct Marks (# of occasions):	   () /  ()
Awards and Decorations (per DD 214):  Rifle   KDSM GWOTSM  LOA (2)

Periods of UA/CONF:  

NJPs:	
20050408: Article 92 (Disobey a lawful order by not having a buddy for off-base liberty).
                  Awarded:    .  Susp - .

20050616: Article 92 (Failure to obey lawful written order), 2 specifications: 
-	Specification 1, traveling out of bounds.
-	Specification 2, wrongfully consuming alcohol while under the legal age.
                  Article 134 (General articles), 4 specifications:
-	Specifications 1-3, indecent language.
-	Specification 4, wrongfully and falsely alter birth date on Identification Card.
                  Awarded:  .  Susp - .

20061110: Article 92 (Failure to obey a lawful order), arrested for public intoxication.
                  Awarded:    .  Susp - .  Suspension vacated 20070315.

20070330:  Article 86 (Unauthorized absence for muster), 2 specifications.
                   Article 91 (Disrespectful towards SNCO).
                   Awarded:   .  Susp - .

20070717:  Article 86 (Failure to be at appointed place), failed to be present and lied about having a 0700 dental   
                                    appointment).
                   Awarded:  .  Susp - .

6105 Counseling: 
20050408: For your irresponsible behavior and negligence in the handling of government proprety (DD Form 714
                  Meal Card).  On two separate occasions within one month time, you have neglected to maintain this form 
                  on your person and safeguard it.

20050408: For violation of Article 86 and 92 of the UCMJ.  You were awarded:  Reduction to Pvt/E-1, forfeiture 1/2
                  month pay for 1 month, 7 days restriction and 7 days extra duty.

20060504: For failure to maintain military hygiene and personal appearance standards.  On or about 20060419 you
                  were confronted at the MCAS barbershop for not being properly shaved and dressed with inappropriate
                  civilian attire.

20050621: For nonjudicial punishment proceedings concerning your violation of Articles 92 and 134.  You were
                  awarded a forfeiture of $571.00 pay per month for 2 months.

20061110: For violation of Article 92.  Arrested for public intoxication, failure to obey an order.  Additionally, you
                  admittedly left MCAS Iwakuni without signing out with the duty or having a liberty buddy.

20061113: For three nonjudicial punishments for the following violations of the UCMJ:  Absence without leave,
                  failure to obey order or regulation, indecent language and false or unauthorized pass offenses.

20070501: For four nonjudicial punishments during this enlistment, for the following violations of the UCMJ, Articles
                  86 (3 specifications), 91, 92 (3 specifications), and 134.

20070724: For unauthorized absence.

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 would like to reenlist and finish his contract.
2.  Youth and immaturity contributed to his conduct.
3.  Applicant desires his character of discharge be upgraded.

Decision

Date:  20080821		Location:  Washington D.C.	 Representation:  

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

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, specifically the paragraph concerning s regarding .  

Issue 2: (Equity)  .  The Applicant feels his actions were due to his uneducated and adolescent behavior.  While he may feel this was the underlying cause of his misconduct, the evidence of record does not demonstrate the Applicant was not responsible for his conduct or that he should not be held accountable for his actions based on youth, lack of education, or immaturity.  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 8 retention warning counseling’s and 5 non-judicial punishments for violations of the Uniform Code of Military Justice (UCMJ), Articles 86, 91, 92, and 134.  The violations are considered serious in nature and could have resulted in a punitive discharge and confinement for up to three years, if adjudicated by a special or general court martial.  The command did not pursue a punitive discharge but opted for an administrative discharge instead.  The Applicants record indicates continuous misconduct from April 2005 until July 2007.  Within this 2 year time period the Applicant had received enough guidance, counseling’s and opportunities from his command to improve his conduct.  He failed to do so.  The Board determined an upgrade or change would be inappropriate.

Issue 3: ()  .  The Applicant feels he served honorably and should have received an Honorable characterization of service despite his disciplinary problems.  When a Marine’s service has been honest and faithful, it is appropriate to characterize that service under honorable conditions.  An  discharge is warranted when significant negative aspects of a member’s conduct or performance of duty outweigh the positive aspects of the member’s military record.  As discussed above in Issue 2, the Applicant’s record of service was marred by continuous episodes of misconduct.  Based on these continuous violations of the UCMJ and 6105 retention warning counseling’s, the Board determined an upgrade or change 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 

Pertinent Regulation/Law

A.  Paragraph 6210, MISCONDUCT, of the Marine Corps Separation and Retirement Manual, (MCO P1900.16F), effective 
1 September 2001 until Present.

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 86, 91, 92 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