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

FOR OFFICIAL USE ONLY

 ex-Pvt, USMC
Docket No. MD06-00860

Applicant’s Request

The application for discharge review was received on 20060531.  The Applicant requests the Discharge Characterization of Service received at the time of discharge be changed to honorable.  The Applicant requests a documentary record discharge review.  The Applicant did not designate a representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20070405.  After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, no impropriety or inequity in the characterization of the Applicant’s service was discovered by the NDRB.  The Board’s vote was unanimous that the character of the discharge shall not change.  The discharge shall remain General (Under Honorable Conditions) by reason of secretarial authority.

PART I - ISSUES AND DOCUMENTATION

Decisional Issues

Equity:  Misconduct mitigated by medical problems.
	 Post-service conduct mitigates characterization of service.

Documentation

In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:

Applicant’s DD Form 214 (Service 8)
One hundred and seventy-one pages of Applicant’s medical record

PART II - SUMMARY OF SERVICE

Prior Service (component, dates of service, type of discharge):

	Inactive:  USMCR (DEP)	20020124 - 20020616	COG
	Active:    None

Period of Service Under Review:

Date of Enlistment:  20020617		Date of Discharge:  20050930

Length of Service (years, months, days):

Active:    03  03  14
	Inactive:  None

Time Lost During This Period (days):

	Unauthorized absence:  None
	Confinement:		  None

Age at Entry:  18

Years Contracted:  4

Education Level:  12				AFQT:  55

Highest Rank:  LCpl				MOS:  1341 (Engineer Equipment Mechanic)

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  4.1 (5)				Conduct:  3.0 (5)

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as stated on the DD Form 214):  Global War on Terrorism Service Medal, Armed Forces Expeditionary Medal, Sea Service Deployment Ribbon, National Defense Service Medal, Presidential Unit Citation-Navy, Navy Unit Commendation, Letter of Appreciation, Rifle Expert Badge, Rifle Marksman Badge

Character, Narrative Reason, and Authority of Discharge (at time of issuance):

GENERAL (UNDER HONORABLE CONDITIONS)/SECRETARIAL AUTHORITY, authority:  MARCORSEPMAN Par. 6214.

Chronological Listing of Significant Service Events:

031125:	NJP for violation of UCMJ, Article 92: Failure to obey order or regulation.
	Specification: On or about 1300, 030915, violated MCO P1020.34G, by wrongfully being caught with body piercing on his chest.
Violation of UCMJ, Article 107: False official statements and/or documents.
Specification: On or about 1300, 030915, forge the birthdate on the military CAC card.
	Award:  Forfeiture of $645.00 per month for 2 months, restriction and extra duty for 21 days, reduction to E-2.  Forfeiture and reduction suspended for 6 months.  Not appealed.

031125:	Counseling:  Advised of deficiencies in performance and conduct (Failure to obey MCO P1020.34G by having a body piercing, and false official statement about forging birthdate on military ID card.), necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

Not dated:	Reduction to E-2 and forfeiture awarded and suspended at NJP of 031125 vacated.
[NDRB note:  Unit Punishment Book entry documenting vacation indicates date of 040303, the same date on which a subsequent Unit Punishment Book entry documents the Applicant’s subsequent vacation of the suspended reduction to E-1 awarded on 040115.  The NDRB concluded that the date 040303 indicating vacation of suspended reduction to E-2 and forfeitures awarded on 031125 to be administrative error.] 

040115:	NJP for violation of UCMJ, Article 92 (4 specs): Failure to obey order or regulation
	Specification 1: In that LCpl S_(Applicant), having knowledge of a lawful order issued by the Commanding Officer, MWSS 373, to check in with the duty at the appropriate muster times, an order which it was his duty to obey, on or about 031203 at 0700 failed to obey.
	Specification 2: In that LCpl S_, having knowledge of a lawful order issued by the Commanding Officer, MWSS 373, no consumption of alcohol while on restriction, an order which it was his duty to obey, did at MWSS 373, MCAS Miramar, on or about 031130, fail to obey.
	Specification 3: In that LCpl S_, having knowledge of a lawful order issued by the Commanding Officer, MWSS 373, and not allowed to have visitors while on restriction, an order which it was his duty to obey, did at MWSS 373, MCAS Miramar, on or about 031130, at 2230, which he failed to obey.
	Specification 4: In that LCpl S_, having knowledge of Marine Corps order 1700.22D regarding the minimum drinking age, an order it was his duty to obey, on or about 2230, 031130, failed to obey.
	Violation of UCMJ, Article 86: Unauthorized absence.
	Specification: In that LCpl S_, did on or about 031203, 0730, without authority, fail to go at the time prescribed to his appointed place of duty, to wit: work section.
	Award:  Forfeiture of $596.00 per month for 2 months, restriction and extra duty for 45 days, reduction to E-1.  Reduction suspended for 6 months.  Not appealed.

040303:	Reduction to E-1 awarded and suspended at NJP on 040115 vacated.

040318:	NJP for violation of UCMJ, Article 86 (3 specs): Absence without leave.
	Specification 1: On or about 040128 failed to appear for a 0730 muster.
	Specification 2: On or about 040128, broke restriction order by not checking at 0700.
	Specification 3: On or about 0700, 040308 failed to be at his appointed place of duty.
Violation of UCMJ, Article 91: Willfully disobeying an NCO.
	Award:  Restriction and extra duty for 45 days.  Not appealed.

041203:	An Administrative Discharge Board, by unanimous vote, found that the proposed basis for separation, misconduct due to a pattern of misconduct, was not supported by a preponderance of the evidence, and recommended retention.  
[Extracted from Commanding General’s letter, dated 050727.]

050425:	Applicant notified of intended recommendation for discharge as general (under honorable conditions) by reason of the best interest of the service.  Applicant informed the least favorable character of service possible was as general (under honorable conditions).

050428:	Applicant advised of rights and having consulted with counsel, elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation and submit statements in rebuttal to this proposed separation.

050510:	Commanding Officer, Marine Wing Support Squadron 373, recommended that Applicant be discharged in the best interest of service with a characterization of service as general (under honorable conditions).

050627:	SJA review determined the case legally sufficient.  Offered opinion of an error during the proceedings.  The Administrative Board found that the allegations in the proposed separation were not supported by a preponderance of the evidence and recommended retention.  The Board erred in their findings, in that the Applicant’s nonjudicial punishments had not been set aside nor had the page 11 counseling been deleted as erroneous.  Recommended to Separation Authority that package be forwarded to the Secretary of the Navy with a recommendation that Private S_ (Applicant) be discharged per paragraph 6214, MARCORSEPMAN, in the best interest of the service with a characterization of service as general (under honorable conditions).

050627:	GCMCA, Commanding General, Third Marine Aircraft Wing, recommended to the Deputy Commandant, Manpower and Reserve Affairs, that Applicant be discharged in the best interest of the service with a characterization of service as general (under honorable conditions).

050728:	NJP for violation of UCMJ, Article 111: DUI onboard MCAS Miramar, CA on 050710 (BAC .21).
	Award:  Forfeiture of $617.00 per month for 1 month, restriction and extra duty for 45 days.  Forfeiture suspended for 6 months.  Not appealed.

050729:	Director, Personnel Management Division, Headquarters Marine Corps, recommended to Assistant Secretary of the Navy (Manpower and Reserve Affairs), that Applicant be discharged by reason of secretarial authority with a characterization of service as general (under honorable conditions).

050822:	Assistant Secretary of the Navy (Manpower and Reserve Affairs) approved recommendation for discharge by reason of Secretarial Authority with a characterization of service as general (under honorable conditions).

050830:	Commandant of the Marine Corps directed Applicant’s discharge by reason of Secretarial Authority with a characterization of service as general (under honorable conditions).

Service Record Book contains a partial Administrative Discharge package.  

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20050930 by reason of secretarial authority (A) with a service characterization of general (under honorable conditions).  After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, the Board found that the discharge was proper and equitable (B and C).  The Board presumed regularity in the conduct of governmental affairs (D).

When a Separation Authority does not concur with an Administrative Board’s determination that a basis of separation is not supported by a preponderance of the evidence and recommendation for retention, the Separation Authority may either approve the findings and recommendation or forward the case to the Secretary of the Navy.  In such cases, the basis for discharge will be under separation in the best interest of the service.  In Applicant’s case, the Separation Authority did not concur with the Administrative Board’s finding that the basis for separation, misconduct due to a pattern of misconduct, was not supported by a preponderance of the evidence, nor its recommendation for retention.  The Separation Authority forwarded the case to the Secretary of the Navy for decision per regulations.  Regulations do not explicitly require further notice to the Applicant and an opportunity to respond; however, the Applicant was notified and provided an opportunity to submit statements for consideration by the Separation Authority prior to forwarding the recommendation to the Secretary of the Navy.  The Board found no impropriety in this procedure.  Relief is not warranted.

Regarding characterization, when the service of a member of the U.S. Marine Corps has been honest and faithful, it is appropriate to characterize that service as honorable.  A general discharge is warranted when significant negative aspects of a member’s conduct or performance of duty outweigh the positive aspects of the member’s military record.  The Applicant’s service was marred by a retention warning and 4 nonjudicial punishment proceedings for violations of Articles 86, 92, 107 and 111 of the UCMJ.  The NDRB could not determine from the record for what reason the Administrative Board found that this misconduct was not supported by a preponderance of the evidence; however, in the absence of substantial credible evidence to the contrary, the NDRB presumed regularity in regard to the documented misconduct in the Applicant’s service record.  In regards to the Applicant’s medical condition, 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.  The NDRB generally does not consider the circumstances surrounding the Applicant’s stated condition, the diagnosis, nor the medical treatment given to the Applicant to be of sufficient nature to exculpate the Applicant’s misconduct.  In this case, the NDRB did not perceive a mitigating connection between the Applicant’s documented medical conditions and his misconduct.  The evidence of record did not show that the Applicant was either not responsible for his conduct or that he should not be held accountable for his actions.  The Board noted that the Applicant’s final nonjudicial punishment was imposed for misconduct occurring after his administrative board, and could have been used to process him for again for separation on the basis of misconduct which would have exposed him to a possible, and more severe, characterization of service as under other than honorable conditions.  The NDRB advises the Applicant that violations of Articles 92, 107 and 111 of the UCMJ are considered serious offenses for which a punitive discharge is authorized if adjudged at a special or general court-martial. The Applicant’s conduct, which forms the primary basis for determining the character of his service, reflects his willful failure to meet the requirements of his contract with the U.S. Marine Corps and falls far short of that required for an upgrade of his characterization of service.  Relief denied.

The Veterans Administration determines eligibility for post-service benefits, not the Naval Discharge Review Board.  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.  Additionally, the Board has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities.  Regulations limit the Board’s review to a determination of the propriety and equity of the discharge.  

The following is provided for the edification of the Applicant.  Normally, to permit relief, a procedural impropriety or inequity must have occurred during the discharge process for the period of enlistment in question.  The Board discovered no impropriety or inequity after a review of Applicant’s case.  There is no law or regulation, which provides that an unfavorable discharge may be upgraded based solely on the passage of time or good conduct in civilian life subsequent to leaving Naval service.  The NDRB is authorized to consider post-service factors in the recharacterization of a discharge 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.  Examples of documentation that should be provided to the Board include proof of educational pursuits, verifiable employment records, documentation of community service, credible evidence of a substance free lifestyle and certification of non-involvement with civil authorities.  As of this time, the Applicant has not provided any post-service documentation to consider mitigating the misconduct that resulted in the characterization of discharge.  Relief denied.

The Applicant remains eligible for a personal appearance hearing, provided an application is received, at the NDRB, within 15 years from the 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.

Pertinent Regulation/Law (at time of discharge)

A.  Paragraph 6214, SEPARATION IN THE BEST INTEREST OF THE SERVICE, of the Marine Corps Separation and Retirement Manual, (MCO P1900.16F, effective 01 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 V, Para 502, Propriety.

C.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 503, Equity.

D.  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 IV - INFORMATION FOR THE APPLICANT

If you believe that 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.  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”.

The names and votes of the members of the 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