ex-, USMC
 MD07-00018

Current Discharge and Applicant’s Request:

Application Received:  				20060926
Characterization of Service:			
Basis for Discharge:				 -
	Discharge Authority:			MARCORSEPMAN 6210.2
	Duty Assignment/Command at Discharge:	MCSFBN, PAC, MINSY, VALLEJO, CA

Applicant’s Request:
	Characterization change to:		
	Narrative Reason change to: 		
	Review Requested:			
	Representation:  				

Applicant’s Issues:
1.  Applicant sign DD 214
2.  Replace Dress Blue Uniform
3.  Discharge Procedures Unfair
4.  Post Service		

Decision:
By a vote of 5-0 the Characterization shall remain UNDER OTHER THAN HONORABLE CONDITIONS
By a vote of 5-0 the Narrative for Separation shall remain MISCONDUCT-MINOR DISCIPLINARY INFRACTIONS

Date of Decision:					20070816     
Location of Board:				Washington D.C.
Complete Service Record:				yES
Complete Medical Record:			yES
Complete Discharge Package:			yES

Issues 1&2:  The Board determined that these issues are not issues which can form the basis for relief for the Applicant or that the Board did not have the authority to grant the relief for which the Applicant petitioned.  The Applicant is directed to the Addendum regarding these issues.

Issue 3 (Equity) The Board reviews the propriety and equity of an Applicant’s discharge individually, on a case-by-case basis.  If such a review reveals an impropriety or inequity, relief is in order.  Regulations permit relief on equitable grounds if the Applicant’s discharge is inconsistent with standards of discipline of the Naval service.  In reviewing discharges, the Board presumes regularity in the conduct of Government affairs unless there is substantial credible evidence to rebut the presumption, to include evidence submitted by the Applicant.  The NDRB reviewed all of the available records, supporting documents, facts, elements of discharge, evidence submitted by the Applicant, and circumstances unique to this case.  The Applicant chose not to seek the advice of counsel and chose not to request a hearing before an Administrative Discharge Board.  Documentation in the Applicant’s Service Record Book establishes four occasions of deficiencies in performance and conduct with detention warnings, and one occasion of nonjudicial punishment (NJP) for violation of the Uniform Code of Military Justice (UCMJ).  Violation of UCMJ Articles 86 establishes a pattern of minor disciplinary infractions.  Relief  denied.

Issues 4: (Equity).   The NDRB is authorized to consider post-service factors in the recharacterization of a discharge.  However, there is no law or regulation, which provides that an unfavorable discharge, may be upgraded based solely on the passage of time, good conduct, or favorable endorsements in the civilian life subsequent to leaving the service.  Normally, to permit relief, a procedural impropriety or inequity must have been found to have existed during the period of enlistment in question.  Outstanding post-service conduct, to the extent that 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.  The Applicant provided one statement addressing his conduct and character.  The Applicant's efforts need to be more encompassing.  For example, the Applicant could have produced evidence of a verifiable and continuous employment record, evidence of continuing educational pursuits, documentation of community service, certification of non-involvement with civil authorities, and a credit report.  The Board determined that the documentation provided by the Applicant did not mitigate the circumstances that resulted in the characterization of discharge.  Relief denied. 

Summary of Service:

Prior Service:
Inactive: USMCR (DEP)				19900322 - 19901211  

Period of Service Under Review:
Date of Enlistment:  				19901212
Years Contracted:  				6
Date of Discharge:				19920522
Length of Service
	Active:					01  Yrs  05  Mths  11  Dys  (does not exclude lost time)
	Time Lost During This Period:		
	
Education Level:  				
Age at this Enlistment:  				
AFQT:  						56
MOS:						6411
Highest Rank:					
Proficiency/Conduct marks (# of occasions):		3.9(3)/3.9(3)

Awards and Decorations (as listed on the DD Form 214):  NATIONAL DEFENSE SERVICE MEDAL, RIFLE SHARPSHOOTER BADGE

Service Record Entries Related to Characterization of Service or Basis for Discharge

19920117:	Counseling:  Advised of deficiencies in performance and conduct (Two (2) counts of failing to be at your appointed place of duty.  That from 0615 to 0650 on 19920110 and from 0615 to 0700 on 19920113 you were absent from morning formation and training.), necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

19920122:	Counseling:  Advised of deficiencies in performance and conduct (Writing checks without sufficient funds in your account to cover payment, in the amount of $134.58.), necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

19920130:	Counseling:  Advised of deficiencies in performance and conduct (Letter of indebtedness dated 19920108 to Commanding Officer COMBATSYSTECHSCOLCOM.  This letter contained all correspondence between you and the Consumer Adjustment Corporation.  You personally received three (3) letters dated 19911015, 19911129 and 19911212 from this company and in your own words “Had no reason not to respond to them.”  You are advised that this action constitutes fraud, receiving merchandise on credit and not making payment is the same as stealing.), necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

19920212:	Counseling:  Advised of deficiencies in performance and conduct (Writing checks without sufficient funds in your account to cover payment and letters of indebtedness.  Writing checks without sufficient funds in your account to cover payment, in the amount of $55.00.), necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

19920219:	NJP for violation(s) of UCMJ:
	Article 86:  UA from 0615, 19920213 to 0645, 19920214..
	Award:  Forfeiture of $213.00 for 1 month, restriction and extra duty for 14 days.
	Not appealed.

19920227:	Applicant dropped from Data Systems Class “A” School due to substandard performance.

Elements of Discharge:  [INVOLUNTARY]

Date Notified:					19920318
Basis for Discharge:				-
Least Favorable Characterization:			
Commanding Officer’s Intended Recommendation:	

Date Applicant Responded to Notification:		19920318
Rights Elected at Notification:
	Consult with Counsel			
	Obtain Copies of Documents		
	Submit Statement(s) (date)			
	Administrative Board			

Commanding Officer Recommendation (date):	 (19920415)
SJA review (date):				Document not found
Separation Authority (date):	COMMANDING GENERAL, FLEET MARINE FORCE, PACIFIC (19920513)
	Basis for discharge directed:		 due to:  
	Characterization directed:			
Date Applicant Discharged:			19920522

Additional Information Considered By Board

______	Document Type					# Pages
       
Related to Period of Service Under Review:
	Service / Medical Record:				207/93	
Other Period(s) of Service:				0
Related to Post-Service Period:
	Community Service:				0
	Education:					0
	Employment:					0
	Health/Medical:					0
	Character Statements:				0
	Criminal Record Checks:				0
	Additional Statements from Applicant:		0
	Other Documents:				0

Pertinent Regulation/Law

A.  Paragraph 6210, Misconduct, of the Marine Corps Separation and Retirement Manual, (MCO P1900.16D), effective 
27 June 1989 until 17 August 1995.

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.

ADDENDUM:  Information for the Applicant

Complaint Procedures:  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.”

Additional Reviews:  Subsequent to a document review, former members are eligible for a personal appearance hearing, provided the 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.  If a former member has been discharged for more than 15 years, has already been granted a personal appearance hearing or has otherwise exhausted his opportunities before the NDRB, the Applicant may petition the Board for Correction of Naval Records (BCNR), 2 Navy Annex, Washington, DC 20370-5100 for further review.

Service Benefits:  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.

Employment/Educational Opportunities:  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.  

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 Board for Correction of Naval Records (BCNR) can make changes to reenlistment codes.  Additionally, the Board 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 subsequently is processed for an administrative involuntary separation for misconduct, the disability evaluation is suspended.  The Physical Evaluation Board case remains in suspense pending the outcome of the non-disability proceedings.  If the action includes either a punitive or administrative discharge for misconduct, 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 “PTSD.”  Only the Board for Correction of Naval Records can grant this type of narrative reason change.  

Automatic Upgrades - 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 may 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.  

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 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.  

Board Membership:  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