ex-, USMC

Current Discharge and Applicant’s Request
Application Received:  20090930
Characterization of Service Received:  
Narrative Reason for Discharge:  
Authority for Discharge:  MARCORSEPMAN 

Applicant’s Request:	Characterization change to: 
	Narrative Reason change to: 

Summary of Service
Prior Service:
Inactive:	USMCR (DEP)	19990614 - 20000613  	Active:	

Period of Service Under Review:
Date of Current Enlistment:  20000614	Age at Enlistment:  
Period of Enlistment:   Years   Months
Date of Discharge:  20020212	Highest Rank:  
Length of Service:    Year(s)    Month(s)  28  Day(s)
Education Level:  	AFQT:  59
MOS:  0621
Proficiency/Conduct Marks (# of occasions):   () /  ()	Fitness Reports:  
Awards and Decorations (per DD 214):	Rifle  MM

Periods of CONF:  

NJP:  

- 20011120:	Article  (UA, fail to go at the time prescribed to appointed place of duty, Comm Plt, HSCo,InstrBn, TBS, MCCDC, Quantico VA) 
	Awarded:     Suspended:  
SCM:  

- 20011102:	Article  (Failed to obey a lawful order)
	Sentence:     Suspended:  RIR

SPCM:  	CC:  

Retention Warning Counseling:  

- 20010727:	For violation of Article 86, on 20010529 at 1200 you fail to show up to your appointed place of duty.  

- 20010928:	For failure to maintain 782 gear issued to you.  

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:	

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

Applicant’s Issues

1.	The Applicant contends that his discharge was based on one minor isolated incident with no other adverse action, which did not warrant an Under Other Than Honorable characterization of service.  Applicant contends that one charge brought against him was false and that charge influenced the characterization of service and discharge narrative reason.   

Decision

Date:  20101022		Location: Washington D.C.	 Representation: 

By a vote of  the Characterization shall  .
By a vote of  the Narrative Reason shall  SECRETARIAL AUTHORITY.

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 Applicant identified one decisional issue to the Board.  Additionally, the Board completed a thorough review of the circumstances that led to the Applicant’s discharge, and the discharge process, to ensure his discharge met the pertinent standards of equity and propriety.  

The Applicant’s record of service included two 6105 retention-counseling warnings, one  for  of the Uniform Code of Military Justice (UCMJ): Article 86 (Absence without leave; specifically, failure to go at time prescribed to appointed place of duty), and   for  of the UCMJ: Article 92 (Failure to obey order or regulation; specifically, failure to open an allotment as directed).  Moreover, the Applicant’s record reflects two requests for a Hardship discharge due to his parenting situation that developed post-enlistment and numerous external inquiries to the command regarding the Applicant’s status and an egregiously long delay in processing his dependency allowances.     

Based on the offenses committed by the Applicant, the command chose to process him for separation administratively.  When notified of the proposed administrative separation using the  procedure, the Applicant waived  rights to consult with a qualified counsel, to submit a written statement, and to request an administrative hearing before a board.  For the Board’s consideration, the Applicant provided documentation that included: , letters of personal reference, , , a VA determination of eligibility, and chronological records of the underlying facts and background relating to his separation.  The Applicant should be aware submission of these items alone does not guarantee an upgrade from an unfavorable discharge; each discharge is reviewed by the Board, on a case-by-case basis, to determine if such matters provide for a more thorough understanding of the Applicant’s performance and conduct during the period of service under review.  

:  (Decisional) () PARTIAL .  The Applicant contends that his discharge was based on one minor isolated incident with no other adverse action, which did not warrant an Under Other Than Honorable characterization of service.  Applicant contends that one charge brought against him was false and that charge influenced the characterization of service and discharge narrative reason.   

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 Applicant’s record of service along with the documentation provided, overcame the Board’s presumption of regularity in this case.  The Applicant elected court martial in lieu of non-judicial punishment when charged with violation of a lawful order.  He was eventually subject to a summary court-martial for failing to follow a lawful order to establish and maintain a dependency allotment to the minor (under the age of 18) living at home.  He was found guilty of one of two specifications brought against him.  The records reflect that the Applicant did start the allotment and make payment as directed, but, when he canceled the direct deposit allotment and instead began making cash payments to the child’s mother, he failed to follow the specific order given him by the Company Commander.  However, the Applicant remained within the spirit and intent of the order as he had established a new joint savings account with the mother for the dependency allotment payment during that cash payment period in order to ensure that only the mother would have access to the funds he was providing.  

The Board determined that if all the facts had be known, and been considered at the time, the Applicant would not have been discharged for misconduct nor would he have received the characterization of service assigned.  Relief is warranted.  In cases where no other reason for separation set forth in the Naval Military Personnel Manual or Marine Corps Separation and Retirement Manual is appropriate, but where separation of a member is considered to be in the best interest of the service, the Secretary of the Navy has the authority to direct the separation of any member prior to the expiration of their term of service.  There is no other narrative reason for separation that accurately describes the reason the Applicant was separated.  Therefore, the NDRB determined that the reason for the Applicant’s discharge shall change to Secretarial Authority

When the quality of a service member has met the standards of accepted conduct and performance of duty for military personnel, it is appropriate to characterize that service under Honorable conditions.  A General (Under Honorable Conditions) characterization of service is appropriate if the member’s service has been honest and faithful, but significant negative aspects of the member’s conduct or performance outweighs the positive aspects of the member’s military record.  An Under Other Than Honorable conditions discharge is appropriate when the basis for separation is the commission or omission of an act that constitutes a significant departure from the conduct expected from a service member.  By a vote of 5-0, the Board determined that the Applicant’s service was honest and faithful, but that the documented negative aspects of the member’s
Service, to include retention warnings and administrative, non-judicial punishments, did outweigh the positive aspects of his service, but were not deliberate acts of commission or omission that were a significant departure from the expected conduct.  As such, a characterization of service of General (Under Honorable Conditions) was determined to be appropriate and equitable.      

After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, the NDRB discerned impropriety in the discharge action and inequity in the characterization of the Applicant’s service.  The Board determined that partial relief to the Applicant’s request was appropriate.  The Board voted 5-0 that the characterization of service at discharge shall be upgraded to General (Under Honorable Conditions) and that the narrative reason for the discharge, MISCONDUCT, shall be changed to SECRETARIAL AUTHORITY.  

Summary:  After a thorough review of the available evidence, to include the Applicant’s summary of service,  record entries, the discharge process, and the evidence provided by the Applicant, the Board found   Therefore, the awarded characterization of service shall  GENERAL (UNDER HONORABLE CONDITIONS) and the narrative reason for separation shall change to SECRETARIAL AUTHORITY.

The Applicant remains eligible for a personal appearance hearing for a period of fifteen years from the date of  discharge.  The Applicant is directed to the Addendum, specifically the paragraphs titled Additional Reviews and Post-Service Conduct.

Pertinent Regulation/Law

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

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), 2 Navy Annex, Washington, DC 20370-5100 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