ex-, USMC

Current Discharge and Applicant’s Request

Application Received:  20080804
Characterization of Service Received:  
Narrative Reason for Discharge:  
Authority for Discharge:  MARCORSEPMAN 

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

Summary of Service

Prior Service:
Inactive: USMCR (DEP) 19980624 - 19990120  		Active:   

Period of Service Under Review:
Date of Enlistment: 19990121	Period of Enlistment:   Years   Months	Date of Discharge:  20020211
Length of Service:    Years    Months   21  Days	    Education Level:  	Age at Enlistment:  
AFQT:  46	MOS:  3531	Highest Rank:  	Fitness Reports:  
Proficiency/Conduct Marks (# of occasions):	   () /  ()
Awards and Decorations (per DD 214):  Rifle 

Periods of CONF:  19990816-19991018 (64 DAYS)

NJP:  
- 20011017:  Article 86 (UA), 6 and ½ hours
                     Article 92 (Disobey a direct order), 3 specifications
                     Awarded:      Suspended:  

SCM:      SPCM:  

CC:  
- 19991019:  Offense:  Crime against nature and assault on a female.
                      Sentence:  Fined $2,106.00, supervised probation for 24 months.

6105 Counseling:  
- 20000111:  For civil conviction on 19991019.  I was in hands of civilian authorities from 1630, 19990816 to 1500, 
                     19991019 in the State of North Carolina, Onslow County, Jacksonville, NC.  Arrest and conviction was 
                     for crimes against nature committed on 19990801.  My trial was held on 19991019 and I was awarded 
                     5 months minimum and 8 months maximum confinement in the custody of NC DOC; fined a total of 
                     $2,106.00.  I was awarded 65 days time served in confinement and released under supervised probation 
                     for 24 months.

- 20011016:  For revocation of Base driving privileges aboard all Marine Corps Installations, family housing areas, 
                      approach roads to these bases or areas and all installation gates per BO P5560.2K.  The revocation
                      expires on 20020927.

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:	
	
Related to Post-Service Period (cont):	

                   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 P1900.16F), 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, Article 86 and Article 92.

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

Applicant’s Issues

1.  Isolated incident.
2.  Unjust treatment by command.
3.  Desires Narrative Reason for Separation be changed to “Uncharacterized”.

Decision

Date:  20081204		Location:  Washington D.C.	 Representation:  

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

Discussion

:  ()  RELIEF NOT WARRANTED.  The Applicant stated his discharge was inequitable because it was based on one isolated incident in almost three years of service.  He is asking for an upgrade from an “Under Other Than Honorable Conditions” to a “General (Under Honorable Conditions)” 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.  The Applicant’s record of service was marred by two retention warnings, one NJP for violation of the Uniform Code of Military Justice (UCMJ):  Article 86 (UA), Article 92 (Failure to obey a lawful order), and a civil felon conviction in the state of North Carolina for crimes against nature.  Violations of the UCMJ Articles 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 Applicant plead guilty to the charge of crimes against nature and was confined to the Onslow County Jail as punishment.  

For the edification of the Applicant, despite a service member’s prior record of service certain serious offenses, even though isolated, warrant separation from the naval service in order to maintain proper order and discipline.  Characterization of service as “General (Under Honorable Conditions)” is warranted when a member’s service has been honest and faithful, but a significant negative aspect 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 service member.  The Applicant’s conduct displayed a significant departure from that expected of a U. S. Marine and the Board determined the awarded discharge characterization was appropriate; an upgrade would be inappropriate.

:  ()  .  The Applicant claims he was treated unjustly by his command because he was used as an example.  A review of available records revealed nothing to indicate the Applicant’s discharge was inconsistent with the standards of discipline in the United States Marine Corps nor does the Applicant provide any documentation or statements from witness to support his claim he was unfairly singled out by his commanding officer.  The Applicant’s statements alone do not overcome the government’s presumption of regularity in this case.  In the absence of collaborating evidence, the Board determined the awarded discharge characterization was appropriate and an upgrade would be inappropriate.

Issue 3: (Equity) RELIEF NOT WARRANTED.  The Applicant is requesting his Narrative Reason for Separation be changed from “Misconduct” to “Uncharacterized”.  The Narrative Reason for Separation found in Block 25 of the DD 214 is a plain English reason for separation.  The Board is authorized to change this to “Secretarial Authority” if evidence is presented by the Applicant which proves the reason stated was erroneous.  The Applicant does not address why he feels the Narrative Reason should change.  Neither does he present documentation or statements of witness which would justify the 

requested change.  In the absence of collaborating evidence, the Board determined the narrative reason was appropriate and a 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 

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 or for any basis wherein an Other Than Honorable Discharge is authorized, 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