ex-, USMC

Current Discharge and Applicant’s Request

Application Received:  20100817
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)	20021016 - 20021208  	Active:	

Period of Service Under Review:
Date of Current Enlistment:  20021209	Age at Enlistment:  
Period of Enlistment:   Years   Months
Date of Discharge:  20061201	Highest Rank:  
Length of Service:    Year(s)    Month(s)  23  Day(s)
Education Level:  	AFQT:  36
MOS:  3531
Proficiency/Conduct Marks (# of occasions):   () /  ()	Fitness Reports:  

Awards and Decorations (per DD 214):	Rifle      

Periods of UA/CONF:  

NJP:  3

- 20040510:	Article  (Failure to go to appointed place of duty – Battery formation)
	Article  (Failure to obey lawful order – going out of bounds)
	Article 107 (False official statement, 2 specifications)
	Article 134 (Make and utter to MCCS 9 checks for a total amount of $2,024.99 and dishonorably fail to maintain sufficient funds for payment)
	Awarded:     Suspended:  

- 20041227:	Article  (Failure to go to appointed place of duty – front grant watch post)
	Article 92 (Failure to obey lawful order – to fold up cammie nets and place them into the trailer)
	Awarded:    Suspended:  

-Unknown date [extracted from command administrative discharge package and 6105 counseling entry (signed by Applicant) specifying 3 NJP’s of record]

SCM:  

- 20061107:	Article  (Go from appointed place of duty)
	Article 92 (Violation of a lawful general order, to wit SECNAVINST 5300.28D by aiding, abetting, and procuring the commission of another Lance Corporal for the wrongful use of prescription medications)
	Sentence:   
	CA Action:  20061107 Approved and ordered executed.  Conf suspended for 6 months

SPCM:  	CC:  

Retention Warning Counseling:  

- 20050818:	For misconduct, specifically, violation of Article 86 in that I was 3 hours late to work.

- 20060713:	For unauthorized absence, specifically taking convalescent leave and not being at the designated address.  Also for having established a pattern of misconduct concerning 3 NJPs of which 2 involved unauthorized absence.

- 20060901:	For unauthorized absence, specifically not being at the designated place of duty on 20060828.  Also for having established a pattern of misconduct concerning 3 NJPs of which 2 involved unauthorized absence and a previous Page 11 for unauthorized absence.

- 20060907:	For convenience of the government, condition not a disability.

- 20061109:	For administrative separation on the basis of misconduct-pattern of misconduct and misconduct-drug abuse.

Administrative Corrections to the Applicant’s DD 214

The NDRB did note administrative error(s) on the original DD Form 214:

  “MARCORSEPMAN PAR 6210.5”
	  “MISCONDUCT”

The NDRB will recommend to the Commandant of the Marine Corps that the DD 214 be corrected 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:		Rehabilitation/Treatment:		Criminal Records:	
	Personal Documentation:		Community Service:		References:	
	Department of VA letter:		Other Documentation:	
		Additional Statements:
	From Applicant:		From/To Representation:		From/To Congress member:	

Pertinent Regulation/Law

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

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.

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

Applicant’s Issues

1.	Nondecisional issues: The Applicant seeks an upgrade in the characterization of his service at discharge in order to facilitate access to Department of Veterans Affairs (VA) medical benefit programs.  

2.	Decisional issues: The Applicant did not identify any issues of propriety or equity related to the discharge action for the NDRB’s consideration.   

Decision

Date:  20110830	       	Location: Washington D.C.	 Representation: 

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

Discussion

The NDRB, under its responsibility to examine the propriety and equity of an Applicant’s discharge, is authorized to change the character of service and the reason for discharge if such change is warranted.  In reviewing discharges, the NDRB presumes regularity in the conduct of governmental affairs unless there is substantial credible evidence to rebut the presumption, to include evidence submitted by the Applicant.  The Applicant did not identify any decisional issues for the NDRB’s consideration; however, the NDRB completed a thorough review of the circumstances that led to the Applicant’s discharge, and the discharge process, to ensure the discharge met the pertinent standards of equity and propriety.

The Applicant’s record of service during his current enlistment included five paragraph 6105 retention-counseling warnings and three non-judicial punishments for violation of the Uniform Code of Military Justice (UCMJ), specifically, Article 86 (Absence without leave – failure to go to appointed place of duty, 2 specifications), Article 92 (Violation of a lawful order or regulation, 2 specifications), Article 107 (False official statements, 1 specification), and Article 134 (Dishonorably failing to pay just debt).  Additionally, the Applicant was subject to a Summary Court Martial for violation of Article 86 (Failure to go to appointed place of duty) and Article 92 (Violation of a lawful general order, to wit SECNAVINST 5300.28D by aiding, abetting, and procuring the commission of another Lance Corporal for the wrongful use of prescription medications).

The Applicant’s enlistment record reflects his entry into military service with a waiver to enlistment policy: pre-service law violation of a serious nature.  Additionally, the Applicant acknowledged his complete understanding of the Marine Corps Policy Concerning the Illegal Use of Drugs, in writing, as a requirement to enlistment.  Based on the violation of the Secretary of the Navy Instruction regarding illegal drugs, processing for administrative separation was mandatory.  The NDRB reviewed the Applicant’s administrative separation package.  He was notified of the proposed administrative separation using the board notification procedure.  The Applicant was advised that the basis for separation was due to having established a pattern of misconduct and for misconduct due to drug abuse.  The Applicant was advised in writing that the least favorable characterization of his service possible was Under Other Than Honorable Conditions.  He elected to exercise his right to consult with a qualified legal counsel, but chose not to submit a written statement to the Separation Authority or to request an administrative board hearing.    

(Nondecisional Issue) – The Applicant seeks an upgrade in the characterization of his service at discharge in order to facilitate access to Department of Veterans Affairs (VA) medical benefit programs.  There is no requirement, or law, that grants re-characterization solely on the issue of obtaining veterans benefits.  As such, this issue does not serve to provide a foundation upon which the NDRB can grant relief.  Regulations limit the NDRB’s review solely to a determination of the propriety and the equity of a discharge.

Decisions reached by the VA to determine if former servicemembers rate certain VA benefits do not affect previous discharge decisions made by the Marine Corps.  The criteria used by the VA in determining whether a former servicemember is eligible for benefits is different than that used by the Marine Corps when determining a member’s discharge characterization.

(NDRB Review) – The Applicant did not identify any issues of propriety or equity related to the discharge action for the NDRB’s consideration.  However, the NDRB conducted a thorough review of the circumstances that led to the Applicant’s discharge, and the discharge process, to ensure the discharge met the pertinent standards of equity and propriety.  The Applicant was recommended for administrative separation based on dual reasons for separation: (1) Misconduct (Pattern of Misconduct) due to having established a pattern of misconduct while in his enlistment; and, (2) Misconduct (Drug Abuse) due to his violation of the Secretary of the Navy Instruction regarding Drugs and Alcohol as evidenced by the Summary Court Martial conviction for aiding, abetting, and procuring the commission of another Marine in the wrongful use of prescription medications.

Despite a service member’s prior record of service, certain serious offenses warrant separation from the Naval Service in order to maintain proper order and discipline.  Violation of the SECNAV Instruction is one such offense, requiring mandatory processing for administrative separation, regardless of grade, performance, service record, or time in service.  This action usually results in an unfavorable characterization of service at discharge or, at a maximum, a punitive discharge with the possibility of confinement, if adjudicated and awarded as part of a sentence by a special or general court-martial.  The command did not opt to pursue a punitive discharge but instead chose the more lenient administrative discharge process.  The Applicant was pending referral to trial by special court martial; however, he opted to enter into a pre-trial agreement.  He agreed to plead guilty and to waive his right to an administrative board hearing; in consideration, the command agreed to withdraw the charges from a punitive court martial venue and refer to the lesser administrative, non-punitive Summary Court Martial for adjudication.  The Separation Authority approved the command’s recommendation for separation and directed the Applicant be discharged under other than honorable conditions for Misconduct (Drug Abuse) pursuant to paragraph 6210.5 of the Marine Corps Separation and Retirement Manual (MARCORSEPMAN) and Misconduct (pattern of misconduct) pursuant to paragraph 6210.3 of the MARCORSEPMAN.  The primary basis for separation was directed to be Misconduct (Drug Abuse) with the corresponding separation code of HKK1 (Drug Abuse – Board Waived).  The Applicant was discharged on 01 December 2006.  Based on a detailed review of the service record, the NDRB determined that the separation was proper and that the narrative reason for separation was accurate.  A change would be inappropriate.  Relief denied.

Characterization of service at discharge is the recognition of a Marine’s performance and conduct during a period of enlistment and is not necessarily dependent upon the narrative reason for separation.  An Under Other Than Honorable Conditions discharge is warranted when a member engages in conduct involving one or more acts or omissions that constitute a significant departure from the conduct expected of members of the Naval Service.  The NDRB determined the Applicant’s conduct, which forms the primary basis for determining the character of service, reflected a significant departure from that conduct expected of a Marine.  By a vote of 5-0, the NDRB determined that the narrative reason for separation and the resulting characterization of service at discharge was proper, was equitable, was warranted, and was and remains consistent with the characterization of discharge given others in similar circumstances; an upgrade or change would be inappropriate.  Accordingly, relief as requested is denied.

Summary:  After a thorough review of the available evidence, to include the Applicant’s summary of service, service record entries, and the discharge process, the NDRB determined that   Therefore, the awarded characterization of service shall   and the narrative reason for separation shall remain .  The Applicant remains eligible for a personal appearance hearing for a period of fifteen years from the date of  discharge.  The Applicant is directed to the Addendum, specifically the paragraphs titled Additional Reviews and Post-Service Conduct

ADDENDUM:  Information for the Applicant

Complaint Procedures:  If you believe 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:  After a document review has been conducted, former members are eligible for a personal appearance hearing, provided the application is received at the NDRB within 15 years of the Applicant’s 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.  There are veterans organizations such as the American Legion and the Disabled American Veterans that are willing to provide guidance to former service members in their efforts to obtain a discharge upgrade.  If a former member has been discharged for more than 15 years, has already been granted a personal appearance hearing or has otherwise exhausted their 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 U.S. Department of Veterans Affairs (VA) determines eligibility for post-service benefits, not the NDRB.  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 NDRB has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities.  Regulations limit the NDRB’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 BCNR can make changes to reenlistment codes.  Additionally, the NDRB 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 is processed subsequently for an administrative involuntary separation or is referred to a court martial for misconduct, the disability evaluation is suspended 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 BCNR can grant this type of narrative reason change.

Automatic Upgrades - There is no law or regulation that provides for an unfavorable discharge to be upgraded based solely on the passage of time or good conduct subsequent to leaving naval service.

Post-Service Conduct:  The NDRB is authorized to consider post-service factors in the recharacterization of a discharge.  Outstanding post-service conduct, 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, is considered during Board reviews.  Documentation to support a post-service conduct upgrade includes, but is not limited to: a verifiable continuous employment record; marriage and children’s birth certificates (if applicable); character witness statements; documentation of community or church service; certification of non-involvement with civil authorities; evidence of financial stability or letters of good standing from banks, credit card companies, or other financial institutions; attendance at or completion of higher education (official transcripts); and documentation of a drug-free lifestyle.   The Applicant is advised that completion of these items alone does not guarantee the upgrade of an unfavorable discharge, as each discharge is reviewed by the Board on a case-by-case basis to determine if post-service accomplishments help demonstrate  in-service misconduct was an aberration and not indicative of the member’s overall character.

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 NDRB 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