ex-, USMC

Current Discharge and Applicant’s Request

Application Received:  20130625
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)	20061024 - 20061107  	Active:	

Period of Service Under Review:
Date of Current Enlistment:  20061108	Age at Enlistment:  
Period of Enlistment:   Years   Months
Date of Discharge:  20101227	Highest Rank:  
Length of Service:    Year(s)    Month(s)  16  Day(s)
Education Level:  	AFQT:  90
MOS:  4341
Proficiency/Conduct Marks (# of occasions):   () /  ()	Fitness Reports:  

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

Period of CONF:  20080424-20080605, 43 days

Lost time per DD214: 20100813-20100928, 47 days
 
NJP:  

- 20100715:	Article  (Absence without leave) 
	Article  (Failure to obey order or regulation, 2 specifications) 
	Awarded:    Suspended:   

SCM:  

- 20101001:	Article  (Insubordinate conduct toward warrant officer, noncommissioned officer, or petty officer, 2 specifications)
	Article 92 (Failure to obey order or regulation, 2 specifications)
	Sentence: Not Found in Record [Extracted from Notification of Separation Proceedings dated 20101214]  

SPCM:  

- 20080528:	Article  (Absence without leave, 200080410-20080424, 14 days)
	Article  (Larceny and wrongful appropriation)
	Sentence: CONF 5 months  Fine of $1,500 pay with an additional sentence of 2 months confinement if the fine is not paid, hard labor without confinement for a period of 60 days, restriction for a period of 60 days to be served in conjunction with the hard labor, RIR

CC:  	Retention Warning Counseling:  

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.

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 violations of the UCMJ, Articles 91, 92, and 121.  

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

Applicant’s Issues

1.	The Applicant contends his in-service conduct warrants an upgrade.
2.	The Applicant contends his command was biased against him.
3.	The Applicant contends his charges could never be proven beyond a reasonable doubt.
4.	The Applicant contends violating Article 86 is only justifiable if the servicemember has left the installation.
5.	The Applicant contends medical and mental problems mitigate his misconduct.

Decision

Date:  20140130		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   for  of the Uniform Code of Military Justice (UCMJ): Article 86 (Absence without leave) and Article 92 (Failure to obey order or regulation, 2 specifications), one Summary Court-Martial for violations of the UCMJ: Article 91 (Insubordinate conduct toward warrant officer, noncommissioned officer, or petty officer, 2 specifications) and Article 92 (Failure to obey order or regulation, 2 specifications), and  Special Court-Martial for  of the UCMJ: Article 86 (Absence without leave, 200080410-20080424, 14 days) and Article 121 (Larceny and wrongful appropriation).  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 but waived his rights to submit a written statement and request an administrative board.

:  (Decisional) ()  .  The Applicant contends his in-service conduct warrants an upgrade.  During the Applicant’s 3 years and 10 months of service, he was found guilty of numerous serious UCMJ offenses at an NJP, Summary Court-Martial, and Special Court-Martial.  Based on the Applicant’s record of service, to include the commendable documentation he submitted and his persistent misconduct, the NDRB determined the Applicant engaged in conduct involving one or more acts or omissions that constituted a significant departure from the conduct expected of members of the Naval Service, and the awarded characterization of service was warranted.  Relief denied.

:  (Decisional) ()  .  The Applicant contends his command was biased against him.  The government enjoys a presumption of regularity in the conduct of its affairs.  The Applicant bears the burden of overcoming this presumption through the presentation of substantial and credible evidence to support his issue.  There is no evidence in the record, nor has the Applicant produced any evidence, to support the contention the command treated him unfairly.  The Applicant was found guilty of violating UCMJ Articles 86, 91, 92, and 121 during his less than four years of service.  Violations of Articles 91, 92, and 121 are considered serious offenses per Appendix 12 of the Manual for Courts-Martial and warranted a punitive discharge (i.e., Bad Conduct).  His command, however, gave him multiple opportunities to correct his poor behavior and ultimately equitably discharged him administratively.  The NDRB determined his discharge was warranted, proper, and equitable.  Relief denied.

:  (Decisional) ()  .  The Applicant contends his charges could never be proven beyond a reasonable doubt.  The record clearly shows the Applicant pled guilty at his Special Court-Martial for violating UCMJ Articles 86 and 121.  The record also shows the Applicant was found guilty at NJP and a Summary Court-Martial for violating UCMJ Articles 86, 91, and 92 where only a preponderance of evidence is needed to find guilt.  In addition, the record shows the Applicant waived his right to appear before an administrative separation board where he would have had the opportunity to mount a defense against his separation for Misconduct (Serious Offense).  Relief denied.

4:  (Decisional) ()  .  The Applicant contends violating Article 86 is only justifiable if the servicemember has left the installation.  The Manual for Courts-Martial United States, Part V, states “any member of the Armed Forces who, without authority, fails to go to his appointed place of duty at the time prescribed; goes from that place; or absents himself or remains absent from his unit, organization, or place of duty at which he is required to be at the time prescribed; shall be punished as a court-martial may direct.”  Therefore, the NDRB found the Applicant’s contention that violating Article 86 is only justifiable if the servicemember has left the installation to be without merit.  Regardless, the record clearly shows he was separated for Misconduct (Serious Offense) for his violations of UCMJ Articles 91, 92, and 121.  The NDRB discerned no impropriety in the Applicant’s discharge.  Relief denied.

5:  (Decisional) ()  .  The Applicant contends medical and mental problems mitigate his misconduct.  The Applicant did not elaborate how his medical and mental problems mitigated his persistent inability to conform to military standards.  However, the record does show he was evaluated by competent medical authority on 07 December 2010 where it was noted that the Applicant had no history of deployments and did not suffer from Post-Traumatic Stress Disorder or Traumatic Brain Injury related to line of duty, combat service, or deployment.  In addition, the results of his Special Court-Martial show that partial acquittal based on mental incompetence was not applicable.  The record of evidence clearly shows the Applicant waived his right to appear before an administrative separation board.  If the Applicant felt there were mitigating circumstances to his misconduct, it was his obligation to contest those charges at the time they were made.  During an administrative separation board, he would have had the opportunity to bring forth any mitigating circumstances.  Although the Applicant waived his administrative separation board and was found guilty of violating numerous UCMJ articles, the NDRB still considered the extent to which his medical problems might affect his ability to conform to the military’s standards of conduct and discipline.  The NDRB found nothing in the records to show that he was not responsible for his conduct or should not be held responsible for his actions.  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