ex-, USMC

Current Discharge and Applicant’s Request

Application Received:  20120802
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)	19990513 - 19990525  	Active:	

Period of Service Under Review:
Date of Current Enlistment:  19990526	Age at Enlistment:  
Period of Enlistment:   Years   Months
Date of Discharge:  20040427	Highest Rank:  
Length of Service:    Year(s)    Month(s)  02  Day(s)
Education Level:  	AFQT:  72
MOS:  2844
Proficiency/Conduct Marks (# of occasions):   () /  ()	Fitness Reports:  

Awards and Decorations (per DD 214):	Rifle  Pistol      LoA (3) CoA

Periods of UA:  

NJP:  

- 20000125:	Article  (Failure to obey a lawful order) 
	Awarded:    Suspended:  

- 20010301:	Article  (Insubordinate conduct toward warrant officer, noncommissioned officer, or petty officer)
	Awarded:    Suspended:  

- 20031023:	Article  (Failure to obey a lawful order, 2 specifications)
	Specification 1: Having knowledge of a lawful order issued by BO 5560.2K, Traffic Regulations, to wit: not to operate a personally owned vehicle under the influence of alcohol, an order which it was his duty to obey, did, at or near Maysville, NC, on or about 0235, 20031002, fail to obey the same by operating a personally owned vehicle under the influence of alcohol
	Specification 2: Having knowledge of a lawful order issued by BO 5560.2K, Traffic Regulations, to wit: not to operate a personally owned vehicle without a valid driver license, an order which it was his duty to obey, did, on board Camp Lejeune, NC on or about 0235, 20031002, fail to obey the same by operating a personally owned vehicle without a valid driver’s license 
	Awarded:     Suspended:  

- 20040128:	Article  (Failure to obey a lawful order)
	Awarded:     Suspended:  

- 20040305:	Article  (Failure to obey order or regulation, 3 specifications)
	Specification 1: Having knowledge of a lawful order issued by Capt M_, on 20040116, not to drive a personally owned vehicle under the influence of alcohol, an order which it was his duty to obey, did, at or 

	near Wilmington, NC on or about 1630 20030117, fail to obey the same by driving a personally owned vehicle while under the influence of alcohol 
	Specification 2: Having knowledge of a lawful order issued by LtCol H_, Battalion Commander, not to drive a personally owned vehicle under the influence of alcohol, an order which it was his duty to obey, did, at or near Wilmington, NC, on or about 1630 20030117, fail to obey the same by driving a personally owned vehicle while under the influence of alcohol
	Specification 3: Who knew of his duties did at or near Wilmington, NC, to obey traffic laws, on or about 1630 20040117, was derelict in the performance of this duty, in that he negligently failed to operate a vehicle while impaired, disobeyed the traffic laws in Wilmington, NC as it was his duty to do
	Awarded:     Suspended:  

SCM:  
- 20021216:	Article  (Insubordinate conduct toward warrant officer, noncommissioned officer, or petty officer, 2 specifications)
	Specification 1: 0645, 20021030, disrespectful toward Cpl L_, by displaying tone of voice and body language
	Specification 2: Disobey CWO2 S_, to wit: not following proper dismissal procedures
	Sentence:   (20021206-20021229, 24 days) 

SPCM:  	CC:  

Retention Warning Counseling:  

- 20000125:	For my failure to conform to Marine Corps standards, specifically my recent NJP for violations of Article 92 of the UCMJ. 

- 20010110:	For failure to follow instructions given by an NCO and disrespect of an NCO.  SNM was told to march to the chow hall in formation and he refused and said he thought it was stupid.

- 20020424:	For disrespect to a SNCO in that SNM was argumentative and disrespectful in tone and manner.  Failure to pack all gear for the TCAT on 020424: SNM is missing a (1) Gortex top, (1) sewing kit, (1) pair white socks, (1) camouflage paint, (1) set Nomex coveralls.  Failure to maintain minimum uniform requirements per MCBUL 10120 FY 2002. SNM is missing: (1) cap garrison men’s, (1) insignia, branch of service, cap, black, screw post; (3) socks, liner, poly/nylon, black, pair; (1) sweat shirt; (1) sweat pants.  SNM has the following unserviceable gear: (2) coats combat; (2) trousers combat.

- 20031117:	For the following deficiencies: your total lack of judgment while operating a POV after consuming alcohol which led to a vehicular accident and you received a ticket for DWI on 20031002 with a BAC of .17 in Maysville, NC.  You were also ticketed for speeding and driving on a revoked license.

- Date NFIR:	For disrespect and disobeying a lawful order.  SNM was given an order by Cpl B_ to report to GySgt C_ near the amtraks.  SNM decided to ignore the Cpl and walked to his tent.  When the Cpl came over to correct, and order him once again where to report, SNM ignored him once again this time walking toward the Cpl forcing him out the way.  Sgt M_ who was in the area noticed what was going on and hurried over to intervene and ordered him to stop.  SNM also ignored him and continued to walk away from them both.

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 P1900.16F), 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.

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

Applicant’s Issues

1.	The Applicant wants an upgrade to be eligible for Department of Veterans Affairs (VA) medical benefits.
2.	The Applicant wants an upgrade to improve employment opportunities.
3.	The Applicant contends an undiagnosed bipolar condition was the underlying cause of his misconduct.
4.	The Applicant contends his post-service conduct warrants consideration for an upgrade.

Decision

Date:  20130521		Location: Washington D.C.	 Representation: 

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

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 Board did complete a thorough review of the circumstances that led to  discharge and the discharge process to ensure  discharge met the pertinent standards of equity and propriety.  The Applicant’s record of service included  6105 counseling warnings,   for  of the Uniform Code of Military Justice (UCMJ): Article 92 (Failure to obey a lawful order, 7 specifications) and Article 91 (Insubordinate conduct toward warrant officer, noncommissioned officer, or petty officer, 1 specification), and   for  of the UCMJ: Article 91 (Insubordinate conduct toward warrant officer, noncommissioned officer, or petty officer, 2 specifications).  Based on the offenses committed by the Applicant,  command administratively processed  for separation.  When notified of administrative separation processing using the  procedure, the Applicant exercised  rights to consult with a qualified counsel, submit a written statement, and request an administrative board.  On 26 March 2004, an administrative board voted 3-0 that a preponderance of the evidence supported misconduct, that separation was warranted, and the board recommended an Under Other Than Honorable Conditions discharge.  The Applicant was discharged on 27 April 2004. 

:  (Nondecisional)  The Applicant wants an upgrade to be eligible for VA medical benefits.  There is no requirement, or law, that grants re-characterization solely on the issue of facilitating access to VA benefits.  As such, this issue does not serve to provide a foundation upon which the NDRB can grant relief.

Issue 2:  (Nondecisional)  The Applicant wants an upgrade for employment opportunities.  The NDRB has no authority to upgrade a discharge for the sole purpose of enhancing employment opportunities.  Regulations limit the NDRB’s review to a determination of the propriety and equity of the discharge.

:  (Decisional) ()  .  The Applicant contends an undiagnosed bipolar condition was the underlying cause of his misconduct.  When reviewing a discharge, the NDRB does consider the extent to which a medical problem might affect an Applicant’s performance and ability to conform to the military’s standards of conduct and discipline.  However, the NDRB does not consider the circumstances surrounding the Applicant’s stated condition or diagnosis to be of sufficient nature to excuse the Applicant’s misconduct.  While the Applicant may believe that his bipolar condition was a contributing factor to his misconduct, it does not mitigate his disobedience of the orders and directives that regulate good order and discipline in the Naval Service, demonstrating he was unsuitable for further service.  Relief denied. 

Issue 4:  (Decisional) ()  .  The Applicant contends his post-service conduct warrants consideration for an upgrade.  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 

provided a personal statement, a clean criminal record check, a doctor’s statement, and two character references.  The Applicant could have provided documentation as detailed in the Post-Service Conduct paragraph in the Addendum, however, 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.  The Board determined that the documentation submitted by the Applicant does not demonstrate if in-service misconduct was an aberration.  The characterization of service received was appropriate considering the length of service and UCMJ violations.  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 for additional information.

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), 701 South Courthouse Road, Suite 1001, Arlington, VA 22204-2490 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