ex-, USMC

Current Discharge and Applicant’s Request

Application Received: 20080820
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)	20010727-20010813   		Active:  20010814-20051104  HON

Period of Service Under Review:
Date of Enlistment: 20051104	Period of Enlistment:   Years   Months	Date of Discharge: 20070212
Length of Service:   Years     Months   07  Days	  Education Level:  	 Age at Enlistment:  	AFQT:  85
MOS: 2831	Highest Rank: 	Fitness Reports: 
Proficiency/Conduct Marks (# of occasions):	  () /  ()
Awards and Decorations (per DD 214):  Rifle    (2x)   ICM CC (2x)

Periods of UA:  20020114 - 20020205 (23 days)

NJP: 1
          - 20020218: Article 86 (UA, failure to properly check in and out of the office.)
                              Awarded: RIR FOP RESTR EPD  Suspended:    

SCM:      SPCM:      CC:  

6105 Retention Warning Counseling:  
                                              - 20020219:  For Unauthorized Absence
                                              - 20061222:  For refusal to recruit

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

              Other Documentation (Describe):  

Pertinent Regulation/Law

A.  Paragraph 6419, SEPARATION IN LIEU OF TRIAL BY COURT-MARTIAL, 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 IV, Para 403m(7)(b), Presumption Concerning Court-Martial Specifications.

C.  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.

D.  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 92 (refusing to obey a lawful order).

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

Applicant’s Issues

1.  Isolated incident.
2.  Command did not help him with medical problems.

Decision

Date: 20081211	          Location: Washington D.C.	Representation: 

By a vote of  the Characterization shall  .
By a vote of  the Narrative Reason shall  SEPARATION IN LIEU OF TRIAL BY COURT MARTIAL.

Discussion

Issues 1 and 2: ()  .   The Applicant states his misconduct was an isolated incident in an otherwise outstanding career.  He believes his overall quality of service rates an “Honorable” 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 was separated from the USMC in lieu of a trial by court martial.  He was a canvassing recruiter who refused to recruit.  The Applicant claimed he was having anger management issues, suffering from depression and a decrease in his overall interest in life:  All he wanted to do was sleep.  He infers this may have been a PTSD reaction from his service in Iraq which occurred from February 2005 to August 2005.  

The Applicant joined his recruiting station in June 2006.  By early September he refused to recruit despite counseling and several direct orders from his Officer-In-Charge (OIC).  He told his OIC he was being treated by a mental health specialist.  His OIC was willing to work with him until he discovered the Applicant did not have a medical appointment as he had claimed.  His OIC states the only time the Applicant attempted to make an appointment to see a doctor was after he informed himself and the District Sergeant Major he had an appointment.  This was seen as a major lapse in the Applicant’s integrity.  A review of the Applicant’s entire medical record reveals at no time was he seen by a mental health specialist nor is there a record he requested to see one.  He fails to mention any mental health issues on both his Post Deployment Assessment Form and his separations physical.  

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.  The Applicant’s record of service was marred by two retention warnings for UA and refusal to recruit and one NJP for a violation of the Uniform Code of Military Justice (UCMJ):  Article 86 (UA).  As a result of his repeated failure to recruit, the Applicant was charged with a violation of UCMJ Article 92 (Failure to obey a lawful order) and was referred to a SPCM.  This specific violation is punishable by a dishonorable discharge or bad conduct discharge and up to 2 years of imprisonment if adjudicated and awarded as part of a sentence by a special or general court-martial.  In the Applicant’s letter to the separations’ authority, he requests to return to his MOS where he states he will continue to perform at his previous outstanding level.  As military service personnel, members are often required to “bloom where planted”.  We do not have the option of choosing which assignments we will accept and which ones we will excel in; we have the obligation to our countrymen to perform to the best of our ability regardless of our personal feelings about a particular assignment.  The Applicant failed in this regard.  The Applicant’s conduct, which forms the primary basis for determining the character of service, falls far short of what is expected of a Marine Staff Sergeant select with his time in service.  The Board determined the awarded discharge characterization was appropriate and an upgrade in the characterization of service based on an isolated incident or that his command failed him 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