ex-, USMC
MD07-00297

Current Discharge and Applicant’s Request

Application Received:  20070105				      Characterization Received:  OTHER THAN HONORABLE
Narrative Reason:  PATTERN OF MISCONDUCT (BOARD) 			         Authority:  MARCORSEPMAN 6210.3

Applicant’s Request:	Characterization change to:  
			Narrative Reason change to: 
Applicant’s Issues:	1.  Desire to re-enlist
			2.  Enhance employment opportunities
			3.  Sexually and racially harassed while in service
			4.  Post-service conduct

Decision

By a vote of  the Characterization shall  .	
By a vote of  the Narrative Reason shall  MISCONDUCT.

Date:  20071004  		    		        Location:  Washington D.C.  

Discussion

Issue(s) 1 - 2:   either  which the Board cannot form the basis of relief for the Applicant, or  the Board does not have the authority to grant the relief for which the Applicant petitioned.  The Applicant is directed to the Addendum regarding .  

Issue 3 ().  When a Marine’s service has been honest and faithful, it is appropriate to characterize that service under honorable conditions.  Characterization of service as under other than honorable conditions is warranted when a member's conduct or performance of duty constitutes a significant departure from expected naval standards.  The Applicant’s service was marred by numerous counselings warning her that her conduct could lead to administrative separation, and the award of nonjudicial punishment (NJP) on 2 occasions for violation of the UCMJ Article 128.  Violation of Article 128 is considered a serious offense for which a punitive discharge is authorized if adjudged by special or general courts-martial.  The Board was satisfied, after review of the Applicant’s claims of harassment, that her misconduct was factually based and due to her own behavior for which she was accountable, that her discharge was administered properly and equitably in accordance with applicable regulations, and that her superiors acted properly in applying those regulations to her case.  The Board noted that the evidence of record indicated that throughout her service the Applicant’s various allegations of others’ wrong-doing were examined and repeatedly found to be unsupported by the evidence.  The Applicant’s assertions to this Board do not overcome the presumption of regularity attaching to conduct of government affairs.  The Applicant’s conduct falls far below that required for an honorable characterization of service.   

Issue 4 ().  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 the service.  The NDRB is authorized to consider outstanding post-service factors in the recharacterization of a discharge 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.  After a complete review of the entire record, including the evidence submitted by the Applicant, the Board determined that the discharge was appropriate and that the evidence of post-service conduct was found not to mitigate the conduct which precipitated the discharge.

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.  After a thorough review of the available evidence, to include the Applicant’s Summary of Service, Medical and Service Record Entries, Discharge Process and evidence submitted by the Applicant, the Board found that  

Administrative Corrections to the Applicant’s DD 214

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

	  “UNDER OTHER THAN HONORABLE CONDITIONS”
	  “HKA1”
	  “MISCONDUCT”

The NDRB will recommend to the Commandant of the Marine Corps that the DD 214 be corrected as appropriate. 

Summary of Service

Prior Service:
Inactive: USMCR (DEP)	20020227 - 20020527  		Active:   	
Period of Service Under Review:
Date of Enlistment: 20020528	Years Contracted:  ; Extension:    		Date of Discharge:  20040924
Length of Service:  02  Yrs  03  Mths  27  Dys	Lost Time:  Days UA:    Days Confined:  
Education Level:         Age at Enlistment: 17        AFQT:  47        MOS: 0621         Highest Rank:  
Proficiency/Conduct marks (# of occasions):	4.2(4)/4.1(4)	Awards and Decorations (per DD 214):  NATIONAL DEFENSE SERVICE MEDAL, RIFLE QUALIFICATION BADGE (SHARPSHOOTER) 

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

20030129:	NJP -- Viol UCMJ Art. 128 – Assault another Marine on or about 0730, 20030124.  
	Awarded - FOP ($532.00) for (1 month) susp 6 months; RIR (E-1); Restr for (30 days); Extra duties (30 days).
	Appeal denied 20030303.

20030130:	Counseling for violation of Article(s) 128 of the UCMJ.  (Did not identify specific corrective action.)

20030324:	MARCORSEPMAN 6105 counseling for disrespectful gesture toward two SNCOs.

20031106:	NJP -- Viol UCMJ Art. 128 – Assault LCpl P_ on 20030414 in the face with closed fist and did thereby intentionally inflict grievous bodily harm, to wit: broken nose, concussion and cuts and abrasions on her face.  
	Awarded - FOP ($286.00) for (2 months), susp 6 months; Extra duties (45 days).

20031121:	MARCORSEPMAN 6105 counseling for NJP of 20031106.

20031125:	Appeal of 20031106 NJP granted in part, unexecuted punishment set aside.

20040511:	MARCORSEPMAN 6105 counseling for contemptuous attitude toward military discipline, customs, courtesy, and authority; failure to conform to military standards; making unsubstantiated allegations; failing to report to court for traffic violation; being subject neighborhood dispute in government quarters.  Advised being processed for administrative separation.

Discharge Process

Date Notified:	20040611
Basis for Discharge:	 DUE TO:  
Least Favorable Characterization:	
Commanding Officer’s Intended Recommendation:	

Date Applicant Responded to Notification:		20040611
Rights Elected at Notification:
	Consult with Counsel			
	Obtain Copies of Documents		
	Submit Statement(s) (date)			 (20040621)
	Administrative Board			

Commanding Officer Recommendation (date):	 (20040611)

20040801:	Applicant, with advice of counsel, waived administrative board.

SJA review (date):	 (20040914)
Separation Authority (date):	CG, 2D MARINE AIRCRAFT WING (20040914)
              Basis for discharge directed:	 DUE TO:  
              Characterization directed:	
Date Applicant Discharged:	20040924

Types of Documents Submitted by Applicant and Considered By Board

Related to Military Service:	Service and/or Medical Record:  		Other Records:  

Related to Post-Service Period:  	
	Employment:  			Finances:  			Education: 		
	Health/Medical Records:  		Substance Abuse:			Criminal Records:  	
	Family/Personal Status: 		Community Service:  		References:  		
	
Additional Statements From Applicant:  	From Representative:    
Other Documentation (Describe)  Statement from SSgt D_ S. T_

Pertinent Regulation/Law

A.  Paragraph 6210, MISCONDUCT, of the Marine Corps Separation and Retirement Manual, (MCO P1900.16F), effective 01 Sep 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 128, Assault.

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 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:  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