ex-PFC, USMC

Current Discharge and Applicant’s Request

Application Received:  20140908
Characterization of Service Received:  (corrected) UNDER OTHER THAN HONORABLE CONDITIONS
Narrative Reason for Discharge:  (corrected) MISCONDUCT 
Reenlistment Code:  RE-4
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: PROPER REASON

Summary of Service

Prior Service:
Inactive:	USMCR (DEP)	20070720 - 20071021  COG	Active:	NONE

Period of Service Under Review:
Date of Current Enlistment:  20071022	Age at Enlistment:  26
Period of Enlistment:  4 Years  0 Months
Date of Discharge:  20120208	Highest Rank:  LANCE CORPORAL
Length of Service:  04  Year(s)  03  Month(s)  17  Day(s)
Education Level:  GED	AFQT:  33
MOS:  0311
Proficiency/Conduct Marks (# of occasions):  4.0 (10) / 4.0 (10)	Fitness Reports:  NOT APPLICABLE

Awards and Decorations (per DD 214):	Rifle MM GCM SSDR ICM (2) GWOTSM NDSM LoA MM 

Periods of UA/CONF:  NONE

NJP:  1

- 20120118:	Article 121 (Larceny) 
	Awarded: RIR FOP RESTR EPD  Suspended:  NONE 

SCM:  NONE  SPCM:  NONE  CC:  NONE  

Retention Warning Counseling:  1

- 20120116:	For NJP for violation of Article 122 at H&S Co 2d Bn 1st Marines on or about 20100801 through 20111120, you wrongfully appropriated over five hundred dollars from the United States Marine Corps. 

NDRB Documentary Review Conducted (date):	20130821
NDRB Documentary Review Docket Number:	MD13-00295
NDRB Documentary Review Findings:		Proper as issued and that no change is warranted.

Administrative Corrections to the Applicant’s DD 214

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

	Block 24, Character of Service, should read: “UNDER OTHER THAN HONORABLE CONDITIONS”
	Block 28, Narrative Reason for Separation, should read: “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:	

Types of Witnesses Who Testified

	Expert:		Character:	

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 121, Larceny.

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

Applicant’s Issues

1.	The Applicant contends the administrative separation was improper because the charges resulted from administrative error in that he attempted to correct his BAH entitlements and there was no attempt to steal.
2.	The Applicant contends that the discharge was improper because he should not have been held beyond his end of active service date for administrative separation due to misconduct.  
3.	The Applicant contends that the discharge was inequitable because of his deployment history, service record, medical issues, and post-service accomplishments.  

Decision

Date:  20160308	PERSONAL APPEARANCE HEARING	Location: Washington D.C.	 Representation: Civilian Counsel

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 completed 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 6105 counseling warning, and one nonjudicial punishment (NJP) for violation of the Uniform Code of Military Justice (UCMJ):  Article 121 (Larceny).  Based on the offense committed by the Applicant, his command administratively processed him for separation.  The Applicant exercised his right to consult with counsel.  Per a pre-trial agreement dated 13 January 2012, the Applicant waived his rights to request an administrative board.  

Issue 1:  (Decisional) (Propriety)  RELIEF NOT WARRANTED.  The Applicant contends the administrative separation was improper because the charges resulted from administrative error in that he attempted to correct his BAH entitlements and there was no attempt to steal.  The Applicant testified that he had updated his military documentation/request to continue to live off base in September 2010 following his marriage dissolution and updated the information again in November 2011 after remarrying.  The Applicant testified that he never verified whether his military documentation/request was approved and for fourteen months never checked his leave and earnings statement to ensure his allowances and pay reflected his unmarried status.  The Applicant, after consultation with counsel, freely and voluntarily signed a pre-trial agreement to plead guilty at NJP and waive his administrative separation board if the Convening Authority withdrew the charges at a pending special court martial.  Per the Applicant’s testimony, the command commissioned the Naval Criminal Investigative Service to investigate the charges.  Additionally, the Applicant submitted a statement to the Commanding Officer where he admits negligence in keeping his records current.  The separation was reviewed by a Staff Judge Advocate on 31 January 2012 and found sufficient in law and fact.  The government enjoys a presumption of regularity in the conduct of its affairs and the Applicant bears the burden of overcoming this presumption through the presentation of substantial and credible evidence to support his issue.  The NDRB found the evidence of record and the testimony provided by the Applicant did not contain sufficient mitigating or extenuating factors to offset the seriousness of the offense for which the discharge was awarded.   Relief denied.  

Issue 2:  (Decisional) (Propriety)  RELIEF NOT WARRANTED.  The Applicant contends that the discharge was improper because he should not have been held beyond his end of active service date for administrative separation due to misconduct.  The Manual for Courts-Martial, Rule 202, allows for adjustment of  an enlistment and retention beyond the date that the period of service would have otherwise expired for court martial jurisdiction.  If action with a view to a trial is initiated before discharge, a person may be retained beyond the date that the period of service would otherwise have expired.  Relief denied. 

Issue 3:  (Decisional) (Equity)  RELIEF NOT WARRANTED.  The Applicant contends that the discharge was inequitable because of his deployment history, service record, medical issues, and post-service accomplishments.  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 recognizes that serving in the military is challenging.  Most servicemembers, however, serve honorably and therefore earn their Honorable discharges.  In fairness to those Marines and Sailors who served honorably, Commanders and Separation Authorities are tasked to ensure that undeserving servicemembers receive no higher characterization than is due.  The NDRB found the characterization of the Applicant’s discharge was equitable and consistent with the characterization of discharge given others in similar circumstances.  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 at the time of discharge.  Therefore, the awarded characterization of service shall remain UNDER OTHER THAN HONORABLE CONDITIONS and the narrative reason for separation shall remain MISCONDUCT.

The Applicant is not eligible for further reviews by the NDRB.  The Applicant may petition the Board for Correction of Naval Records, 701 South Courthouse Road, Suite 1001, Arlington, VA 22204-2490 for further review using DD Form 149.  Their website can be found at http://www.secnav.navy.mil/mra/bcnr.  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, or http://www.secnav.navy.mil/mra/bcnr/Pages/default.aspx 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:  Effective 6 February 2015, the NDRB is authorized to change a NDRB Applicant’s Reenlistment Code if related to an accompanying change in discharge characterization or narrative, but this authority is strictly limited to those cases where an applicant’s narrative reason or characterization of discharge is changed and that change warrants revision of the previously issued reenlistment code.  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