ex-, USMC 

Current Discharge and Applicant’s Request

Application Received:  20101104
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)	20070228 - 20070522  	Active:	

Period of Service Under Review:
Date of Current Enlistment:  20070523	Age at Enlistment:  
Period of Enlistment:   Years   Months
Date of Discharge:  20100211	Highest Rank:  
Length of Service:    Year(s)    Month(s)  19  Day(s)
Education Level:  	AFQT:  69
MOS:  1141
Proficiency/Conduct Marks (# of occasions):   () /  ()	Fitness Reports:  

Awards and Decorations (per DD 214):	Rifle     (2) CoA (2) LoA

Periods of UA:  

NJP:  

SCM:  
- 20081223:	Article  (Wrongful appropriation)
	Sentence:   (20081223-20090103, 12 days) 

- 20090916:	Article  (Assault)
	Sentence: FOP CONF 1 month (20090916-20091004, 19 days)

SPCM:  	CC:  

Retention Warning Counseling:  
- 20080717:	For on 20080702 you disobeyed a Marine Corps Base Japan Regulation by consuming alcohol before you reached the age of 20, which is the legal drinking age for service members on Okinawa.  

- 20091005:	For your conviction at a Summary Court-Martial for violation of Article 128 on 20090916.  

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.  Paragraph 6210, MISCONDUCT of the Marine Corps Separation and Retirement Manual, (MCO P1900.16E), 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, Articles 121 and 128.

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

Applicant’s Issues

1.	The Applicant would like to re-enlist.
2.	The Applicant contends he was separated for an offense he was not convicted of.
3.	The Applicant contends he was denied counsel and the right to have witnesses at one of his Summary Courts-Martial.  
4.	The Applicant contends his Proficiency (Pro) and Conduct (Con) marks were too low and unwarranted on two occasions.
5.	The Applicant contends he was never given a chance to recover from his second incident of misconduct.
6.	The Applicant contends he does not meet a pattern of misconduct since his two incidents are unrelated.
7.	Post-service conduct.
Decision

Date:  20120112		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 Board 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’s record of service included  6105 counseling warnings and  for  of the Uniform Code of Military Justice (UCMJ): Article  (, ) and Article  (, ).  Based on the offenses committed by the Applicant,  command administratively processed  for separation.  When notified of administrative separation processing, the Applicant exercised  rights to consult with a qualified counsel and submit a written statement.  The Applicant waived his right to request an administrative board in accordance with his pre-trial agreement.

Issue 1:  (Nondecisional)  The Applicant would like to re-enlist.  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 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.

:  (Decisional) ()  .  The Applicant contends he was separated for an offense he was not convicted of.  The Applicant believes he was separated for assault with intent to cause grievous bodily harm vice simple assault.  The record clearly shows the charge was changed to reflect simple assault.  The Applicant pled guilty to this charge at Summary Court-Martial in accordance with his pre-trial agreement that allowed the charge to be adjudicated at Summary Court-Martial vice Special Court-Martial, which would have carried the potential of longer confinement and a punitive discharge.  Following his second Summary Court-Martial, his command initiated administrative separation proceedings for Commission of a Serious Offense as evidenced by being found guilty of violation of UCMJ Article 128 (Assault), which is considered a serious offense per the Manual for Courts-Martial, United States.  The NDRB determined the Applicant’s issue to be without merit.  Relief denied.

:  (Decisional) ()  .  The Applicant contends he was denied counsel and the right to have witnesses at his Summary Court-Martial.  In the Applicant’s service record is a detailed summary of proceedings written by his commanding officer (CO) surrounding his September 2009 Summary Court-Martial.  In this summary, his CO wrote a detailed report of the entire process, including the repeated advisement of rights and the Applicant’s acknowledgment of those rights and the Applicant’s agreement that he would plead guilty at Summary Court-Martial as part of a pre-trial agreement so that he would not face a Special Court-Martial for assault.  The record reflects the Applicant consulted with counsel and was properly advised of all his rights at Summary Court-Martial.  The NDRB found no evidence of impropriety or inequity, and the Applicant provided no documentation or evidence to show any impropriety.  Relief denied.   

:  (Decisional) ()  .  The Applicant contends his Pro and Con marks were too low and unwarranted on two occasions.  The NDRB was unable to determine the circumstances surrounding the assignment of low marks on the occasions noted by the Applicant.  However, the NDRB determined the Applicant’s Pro/Con marks were immaterial to his administrative separation or characterization of service since he was separated for Misconduct - Commission of a Serious Offense that was warranted regardless of the Applicant’s Pro/Con marks.  Relief denied.

Issue 5:  (Decisional) ()  .  The Applicant contends he was never given a chance to recover from his second incident of misconduct.  The Applicant’s second incident was a serious offense that warranted separation without any requirement to allow him to recover his career.  Violation of Article 128 (Assault) is a serious offense that warrants confinement and a punitive discharge (i.e., Bad Conduct) if adjudicated at Special Court-Martial.  The Applicant is fortunate his command entered into a pre-trial agreement, which allowed him to have his misconduct adjudicated at Summary Court-Martial and avoided the most serious potential consequences of his misconduct.  His command opted not to separate the Applicant after his first serious offense (violation of Article 121, Larceny) but properly initiated separation proceedings after his second serious offense.  Relief denied.

Issue 6:  (Decisional) ()  .  The Applicant contends he does not meet a pattern of misconduct since his two incidents are unrelated.  The Applicant was separated for Misconduct - Commission of a Serious Offense, not for Misconduct - Pattern of Misconduct, although, per the Marine Corps Separation and Retirement Manual, he does meet the requirements for both bases of discharge.  To meet the requirements for a pattern of misconduct, the incidents of misconduct do not need to be related.  Relief denied.

Issue 7:  (Decisional) ()  .  The Applicant provided proof of college attendance, employment, participation in numerous extracurricular activities at his university, and a business plan for a fitness franchise.  The NDRB is authorized to consider post-service factors in the re-characterization of a discharge.  However, there is no law, or regulation, that provides that an unfavorable discharge may be upgraded based solely on the passage of time or good conduct in civilian life subsequent to leaving the service.  Normally, to permit relief, a procedural impropriety or inequity must have been found to exist during the period of enlistment in question.  The Applicant’s post-service efforts need to be more encompassing.  He could have provided documentation as detailed in the Post-Service Conduct paragraph in the Addendum with the recognition that completion of these items alone does not guarantee an upgrade from an unfavorable discharge as each discharge is reviewed by the Board on a case by case basis to determine if post-service conduct establishes that the in-service misconduct was an aberration.  Without post-service documentary evidence, the Board determined the awarded characterization of service shall remain Under Other Than Honorable Conditions.  Relief denied.

Summary:  After a thorough review of the available evidence, to include the Applicant’s summary of service,  record entries, and discharge process, the Board found   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, Automatic Upgrades, 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