ex-, USMC

Current Discharge and Applicant’s Request

Application Received:  20080819
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)	19990728 - 20000705  		Active:   

Period of Service Under Review:
Date of Enlistment: 20000706	Period of Enlistment:   Years   Months	Date of Discharge:  20031030
Length of Service:    Years     Months   25  Days   Education Level:     Age at Enlistment:  
AFQT:  32	MOS:  0612	Highest Rank:  	Fitness Reports:  
Proficiency/Conduct Marks (# of occasions):	   () /  ()
Awards and Decorations (per DD 214):  Rifle  

Periods of UA:  20020101-20020108 (3 Days)

NJPs:  
             - 20000720:  Article 91 (Verbal threat)
                    Awarded:    Suspended:  

- 20010124:  Article 121 (Larceny and wrongful appropriation)
                     Awarded:      Suspended:  

- 20020207:  Article 86 (UA), 0800 20020105 to 1300 20020108 (3 days 5 hours)
                     Awarded:     Suspended:  

- 20030711:  Article 91 (Insubordinate conduct), 2 specifications
                     Article 92 (Failure to obey an order).  No further information found in service record.  Extracted from
                     counseling dated 20030729.
                     Awarded:  NFIR   Suspended:  NFIR

SCM:       SPCM:        CC:  

6105 Counseling:  
- 20010124:  For violation of Article 121.

- 20020227:  For using a D.O.D. sticker from another P.O.V on your own car to gain entrance to MCAS Cherry Point. 
                     The act is not only unlawful, but also detrimental to the good order and discipline within the command. 
                     Any further acts of this nature will not be tolerated.

- 20030729:  For your conviction of Articles 91 (2 specifications) and 92 of the UCMJ at Company Level NJP on 
                     20030711.

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):  

	- DD Form 149
	- Department of Veterans Affairs
	- Letter from Board for Correction of Naval Records

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 91, 92, and 121

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

Applicant’s Issues

1.  Diagnosed with Obsessive-Compulsive Disorder which lead to misconduct.
2.  Shoulder injury contributed to misconduct.
3.  Record of service, including Good Conduct Medal.
4.  MGIB contributions were not returned to him.

Decision

Date:  20081023		Location:  Washington D.C.	 Representation:  

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

Discussion

:  ()  .  The Applicant contends his discharge should be upgraded due to his diagnosed Obsessive-Compulsive Disorder which contributed to his 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 service record is marred by four NJP’s for violations of the Uniform Code of Military Justice (UCMJ):  Article 86 (UA), Article 91(Insubordinate conduct), Article 92 (Failure to obey an order), and Article 121(Larceny) and received three retention warnings.  Violations of Articles 91, 92 and 121 are considered serious offenses, punishable by a punitive discharge and confinement if adjudicated and awarded as part of a sentence by a special or general court-martial.  The command did not pursue a punitive discharge but opted instead for an administrative discharge.  

The NDRB noted the recommendation for expeditious discharge made by a staff doctor at the military hospital on 16 April 2003.  However, the recommendation specifically stated the Applicant was legally responsible for his actions.  The Applicant requested, and was given, an opportunity to state his case for a more favorable discharge at an Administrative Discharge Board held 12 August 2003.  The Administrative Discharge Board considered the Applicant’s case, including the statement made by the doctor and determined the Applicant’s misconduct warranted a separation with an “Under Other Than Honorable Conditions” characterization of service.  The NDRB determined Applicant’s characterization of service was properly considered by the Administrative Discharge Board and a change would be inappropriate.

:  ()  .  The Applicant contends his discharge should be upgraded due to his shoulder injury which contributed to his performance of his duties.  The NDRB could find no connection, medically documented or otherwise, which tied the Applicant’s shoulder injury to his misconduct. The Board determined an upgrade would be inappropriate.    

:  ()  .  The Applicant contends his discharge should be upgraded to “Honorable” due to his record of service, including his Good Conduct Medal, as stated on his DD-214.  For the edification of the Applicant, he was not awarded the Good Conduct Medal.  The reference to the Good Conduct Medal on his DD-214 simply indicates the starting date for eligibility of the award.  An “Honorable” characterization of service is appropriate when the quality of a member’s service has met the standards of accepted conduct and performance. The NDRB determined the Applicant’s record of misconduct, as previously discussed above, does not meet this high standard and an upgrade would be inappropriate.

Issue 4:  This is not an issue the NRDB can address.  The Applicant is directed to contact the Veteran’s Administration at 
1-888-422-4551 and/or the Defense Finance and Accounting Service at 1-800-962-0648 for further information regarding this issue.

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