ex-, USMC

Current Discharge and Applicant’s Request

Application Received:  20080508
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) 19981030 - 19999627   		Active:  

Period of Service Under Review:
Date of Enlistment:  19990628              Period of Enlistment:   Years   Months	Date of Discharge: 20010223
Length of Service:   Year    Months   18  Days	 Education Level: 	 Age at Enlistment: 	AFQT: 35
MOS:  3531	Highest Rank:  	Fitness Reports:  
Proficiency/Conduct Marks (# of occasions):	  () /  ()
Awards and Decorations (per DD 214):  Rifle  Pistol 

Periods of UA/CONF:  20000124-20000207 (14 days)
                                      20000914-200001012 (29 days)
                                      200001121-20001214 (24 days)

NJP:       SPCM:       CC: 

SCM:  
            - 20001121:  Article 87 (Missing movement)
                                 Article 92 (Allowing a married woman to stay overnight in his barracks)
                                 Article 112a (Drug use, wrongful use of marijuana)
                   Sentence:    

6105 Retention Warning Counseling:  
                                              - 20000208:  For Unauthorized absence.
                                              - 20001102:  Wrongful use of controlled substance.

Administrative Corrections to the Applicant’s DD 214

The NDRB did note administrative error(s) on the original DD Form 214.  Block 29 DATES OF TIME LOST DURING THIS PERIOD, the first time lost entry should read:  (14) 20000124-20000207, vice (14) 20000124-20000226.  Headquarters Marine Corps, Deputy Commandant for Manpower and Reserve Affairs (MMSR-3), Quantico, VA, will be notified, recommending the DD Form 214 be corrected or reissued, as appropriate.

Types of Documents Submitted/reviewed

Related to Military Service: 
              DD 214: 	                            Service/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:  		
     
Related to Post-Service Period (cont):      

	   Additional Statements: 
                              From Applicant: 	From Representation:         	From Congress member:    

              Other Documentation (Describe):  

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, Article 112a.

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

Applicant’s Issues

1.  Personal problems influenced his misconduct.

Decision

Date: 20081120	          Location: Washington D.C.	 Representation: 

By a vote of  the Characterization shall  .
By a vote of  the Narrative Reason shall  MISCONDUCT.

Discussion

: ()  .  The Applicant claims he went UA because his step-father was gravely ill;   he was not thinking clearly because he was worrying about his family life and as a result made inappropriate choices.   He now deeply regrets his three extended periods of UA.  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 two retention warnings for UA and use of illegal controlled substance.  Additionally, the Applicant was the subject of a SCM for violations of the Uniform Code of Military Justice (UCMJ):  Articles 87 (Missing movement), Article 92 (Disobeying a lawful order, having a married woman spend the night in his barracks) and Article 112a (Drug use, wrongful use of marijuana).  Violation of Article 112a is considered a serious offense, punishable by a punitive discharge and up to five years imprisonment if adjudged as part of the sentence upon conviction by a special or general court-martial.  

The NDRB advises the Applicant despite a service member’s prior record of service certain serious offenses, even though isolated, warrant separation from the Navy in order to maintain proper order and discipline.  Violation of Article 112a is one such offense requiring mandatory separation regardless of time in service or grade.  Violations of this policy result in, at a minimum, mandatory processing for an administrative separation which usually results in an unfavorable characterization of discharge or, at a maximum, a punitive discharge and possible confinement if adjudicated and awarded as part of a sentence by a special or general court-martial.

Review of the Applicant’s service record shows his command reviewed with him the required paperwork necessary to apply for a humanitarian transfer/discharge to return home to support his ill step-father.  There is no record he provided the required documentation or if he did, his command failed to act on it.  His decision to have a married woman spend the night with him in his barracks, as well as his choice to use marijuana, had nothing to do with his desire to assist his ill step-father.  While he may have struggled with issues that impacted his decision making ability, he provides no evidence that he was not responsible for his actions.  

The Applicant has requested an upgrade to his discharge characterization to “General (Under Honorable Conditions)”.  A “General (Under Honorable Conditions)” is appropriate if the member’s service has been honest and faithful but significant negative aspects of the member’s conduct or performance outweighs positive aspects of the member’s military record.  An “Under Other than Honorable Conditions” is appropriate when the basis for separation is commission or omission of an act that constitutes a significant departure from the conduct expected of a service member.  Due to the Applicant’s repeated and deliberate misconduct, the Board determined the awarded discharge characterization was appropriate, 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