ex-PFC, USMC

CURRENT DISCHARGE AND APPLICANT'S REQUEST

Application Received: 20140616
Characterization of Service Received: (per DD 214) UNDER OTHER THAN HONORABLE CONDITIONS
Narrative Reason for Discharge: (per DD 214) MISCONDUCT
Authority for Discharge: (per DD 214) MARCORSEPMAN 6210.6 [COMMISSION OF A SERIOUS OFFENSE]

Applicant's Request:  Characterization change to: HONORABLE OR GENERAL (UNDER HONORABLE CONDITIONS) Narrative Reason change to: REQUESTED, BUT NOT SPECIFIED

SUMMARY OF SERVICE

Prior Service:
Inactive:  USMCR (DEP) 20021030-20030126 COG 	Active:   NONE

Period of Service Under Review:
Date of Current Enlistment 20030127 	Age at Enlistment: 21
Period of Enlistment:  4 Years 0 Months
Date of Discharge:  20031230 	Highest Rank: PRIVATE FIRST CLASS Length of Service:  00 Year(s)  11 Month(s) 04  Day(s)
Education Level: 12 	AFQT: 35
MOS:  9900
Proficiency/Conduct Marks (# of occasions): NFIR I NFIR 	Fitness Reports: NOT APPLICABLE Awards and Decorations (per DD 214):   Rifle EX NDSM
Periods of UA/CONF:  NONE NJP:
-20031120:   Article 86 (Absence without leave) 20030720-20031112 (116 days) Awarded: FOP RESTR Suspended: NONE

SCM:  NONE

SPCM:  NONE 	CC: NONE

Retention Warning Counseling: NONE

TYPES OF DOCUMENTS SUBMITTED/REVIEWED

Related to Military Service:
DD 214: 	[X]	Service/Medical Record:   [X]	Other Records: 	[ ]

Related to Post-Service Period: Employment:                           [  ] Health/Medical Records: 	[  ]
Personal Documentation: 	· [  ]
Department of VA letter: 	[  ]
Additional Statements:
From Applicant: 	[  ]

Finances:                           [  ]
Rehabilitation/Treatment:  [  ]
Community Service: 	[  ]
Other Documentation: 	[  ]

From/To Representation:   [  ]

Education/Training: 	[  ]
Criminal Records: 	[  ]
References:	[  ]

From/To Congress member: 	[  ]

Key:	NFIR - Not found in record 	RESTR - Restriction	NJP - Nonjudicial punishment	SCM - Summary court-martial
	SPCM - Special court-martial	FOP - Forfeiture of pay	RIR - Reduction in rank	EPD - Extra duties
	CONF - Confinement	CC - Civilian conviction	CCU - Correctional Custody Unit	CBW - Confinement on bread and water

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

APPLICANT'S ISSUES

I. The Applicant seeks a change in his RE-code in order to reenlist into the Armed Forces.
2. 	The Applicant contends his in-service conduct, as evidenced by his award of a Good Conduct Medal, warrants. consideration for an upgrade to Honorable. 
3.    The Applicant contends his disciplinary problems were the result of stress caused by becoming the sole guardian of his child.

DECISION

Date:  20141021  DOCUMENTARY REVIEW 	Location: WASHINGTON D.C. 	Representation: NONE 

By a vote of 5-0 the Characterization shall remain UNDER OTHER THAN HONORABLE CONDITIONS.
By a vote of 5-0 the Narrative Reason shall remain 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 his discharge and the discharge process to ensure his discharge met the pertinent standards of equity and propriety.  The
Applicant's record of service included one nonjudicial punishment (NJP) for violation of the Uniform Code of Military Justice (UCMJ):  Article 86 (Absence without leave). Based on the offense(s) committed by the Applicant, his command administratively processed him for separation. The NDRB did not have the Applicant's administrative separation package to determine whether or not the Applicant waived his rights to consult with a qualified counsel, submit a written statement, and request an administrative board. However, per the Applicants DD Form 214, the Separation Code HKDI indicates the Applicant waived his right to an administrative board
 
Issue I: (Nondecisional) The Applicant seeks a change in his RE-code in order to reenlist into the Armed Forces.  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. 

Issue 2: (Decisional) (Equity) RELIEF NOT WARRANTED.  The Applicant contends his in-service conduct, as evidenced by his award of a Good Conduct Medal, warrants consideration for an upgrade to Honorable.  The evidence of record shows the Applicant was not awarded a Good Conduct Medal.  The Applicant's DD Form 214 states his eligibility for the Uood Conduct Medal was restarted on the date of his nonjudicial punishment   In order to earn a Good Conduct Medal the Applicant would have to serve for three years without any misconduct to receive the award.  The Applicant was administratively separated and not separated upon expiration of enlistment or fulfillment of service obligation. The characterization of service is determined
by the quality of the member's total performance of duty and conduct during the current enlistment, including the reason for separation.  Other considerations shall be given to the member's length of service, grade, aptitude, and physical and mental condition.  Based on the Applicant's record of service, 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.

Issue 3: (Decisional) (Equity) RELIEF NOT WARRANTED. The Applicant contends his disciplinary problems were the result of stress caused by becoming the sole guardian of his child.  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 that the Applicant had to enter into a period of unauthorized absence to care for his child due to his ex-

wife's abandonment of the child.  The Applicant's statements alone do not overcome the government's presumption of regularity in this case.  The record of evidence does show that prior to his enlistment the Applicant's ex-wife had assumed full physical custody of their child and that the Applicant had no legal or financial obligations to support either their child or herself.  Additionally, there is no evidence in the record, nor did the Applicant provide any documentation, to indicate he attempted to use the numerous services available for servicemembers who undergo personal problems during their enlistment, such as his chain of command, the Navy Chaplain, Medical or Mental Health professionals, Navy Relief Society, Family
Advocacy Programs, or even the Red Cross. While the Applicant may feel that his family difficulties were a contributing factor to his misconduct, they do 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.

Summary:  After a thorough review of the available evidence, to include the Applicant's summary of service, service record entries, and discharge process, the Board found the discharge was proper and equitable. Therefore, the awarded characterization of service shall remain UNDER OTHER THAN HONORABLE CONDITIONS and the narrative reason for separation shall remain MISCONDUCT.

The Applicant remains eligible for a personal appearance hearing for a period of fifteen years from the date of his discharge. The Applicant is directed to the Addendum for additional information.

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, Article 86. 

Key:	NFIR - Not found in record 	RESTR - Restriction	NJP - Nonjudicial punishment	SCM - Summary court-martial
	SPCM - Special court-martial	FOP - Forfeiture of pay	RIR - Reduction in rank	EPD - Extra duties
	CONF - Confinement	CC - Civilian conviction	CCU - Correctional Custody Unit	CBW - Confinement on bread and water

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