ex-PVT, USMC
MD06-01160

Current Discharge and Applicant’s Request:

Application Received:  				20060829     
Characterization of Service:			
Narrative Reason for Separation:			
Discharge Authority:				MARCORSEPMAN 1105
Last Duty Assignment/Command at Discharge:	MARINE BARRACKS 8TH & I WASHINGTON DC

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

Applicant’s issues:
1.  Reenlist in the USMCR
2.  Not given a fair trail.
3.  Clemency.
4.  Post service.

Decision:

By a vote of  the Characterization shall  BAD-CONDUCT DISCHARGE
By a vote of  the Narrative Reason shall  COURT-MARTIAL                                                                                                                                                                                                                                                          

Date of Decision:					20070802
Location of Board:				Washington D.C.
Complete Service Record:				YES
Complete Medical Record:			YES
Complete Discharge Package:			YES
Regarding propriety, the Board found the discharge:	
Regarding equity, the Board found the discharge:	EQUITABLE

Issue 1:  The Board determined that this Issue is not an issue 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 page one of the Addendum regarding this issue. 

Issue 2 (Equity).  The Applicant implies that he was not given a fair trial.  The government enjoys a presumption of regularity in the conduct of its affairs.  The Applicant bears the burden of overcoming this presumption through the presentation of substantial and credible evidence to support his issue.  There is no evidence in the record, nor has the Applicant produced any evidence, to support the contention that he was wrongfully charged and disciplined.  The Applicant’s statements alone do not overcome the government’s presumption of regularity in this case.    

Issue 3 (Equity).  In response to the Applicant’s clemency request, relevant and material facts stated in a court-martial specification are presumed by the NDRB to be established facts.  With respect to a discharge adjudged by a court-martial case, 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 Applicant’s case was considered under the pertinent standards of equity to determine if any factors in this particular case merited clemency.  The NDRB found the evidence of record did not contain sufficient mitigating or extenuating factors to offset the seriousness of the offense for which the discharge was awarded.  In addition, the reason for discharge, convicted by special court-martial, is most appropriate.  After a thorough review of the Applicant’s record, issues submitted, and post service accomplishments, the Board determined that clemency was not warranted and that the sentence awarded the Applicant at his court-martial was appropriate for the offenses he committed.   

Issue 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, or good conduct 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 no documentation of post-service accomplishments.  The Applicant's efforts need to be more encompassing than those provided.  For example, the Applicant could have produced evidence of a verifiable and continuous employment record, documentation of community service, proof of educational pursuits, and certification of non-involvement with civil authorities.  The Board determined that the documentation provided by the Applicant did not mitigate the misconduct that resulted in the characterization of 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, Service Record Entries, Medical Record Entries, Elements of Discharge and evidence submitted by the Applicant, the Board found the Applicant’s discharge proper and equitable.

Summary of Service:

Prior Service:
Inactive: USMCR (DEP)				20000630-20000705 
Active:   		               		19930817-20000523 HON		

Period of Service Under Review:
Date of Enlistment:  				20000706     
Years Contracted:  				;   Extension:   
Date of Discharge:				20040413
Length of Service
	Active:					03  Yrs  04  Mths  25  Dys  (Does not exclude lost time)

Time Lost During This Period:			133
Days UA:  					NONE
Days Confinement:  				133
	
Education Level:  				
Age at this Enlistment:  				
AFQT:  						42
MOS:						0311
Highest Rank:					

Proficiency/Conduct marks (# of occasions):		NOT FOUND IN RECORD

Awards and Decorations (as listed on the DD Form 214):	RIFLE MARKSMAN BADGE, NATIONAL DEFENSE SERVICE MEDAL, ARMY GOOD CONDUCT MEDAL, ARMY ACHIEVEMENT MEDAL 

Service Record Entries Related to Characterization of Service or Narrative Reason for Separation

20010712:	Counseling:  Advised of deficiencies in performance and conduct.  Second domestic disturbance which occurred on base housing at Bolling A.F.B.  A protective order is against you for the next 30 days.  Necessary corrective actions explained.

20011203:	Special. Court-Martial.
	Charge I: Violation of the UCMJ, Article 92 (3 specifications).
	Specification 1: Having knowledge of a lawful order issued by his First Sergeant not to make phone contact or other means of communication with H_ N_, an order it was his duty to obey, did, at Marine Barracks 8th & I, Washington, DC, on or about 20010710, fail to obey the same by wrongfully making a phone contact with H_ N_.  Plea: Guilty.  Finding: Guilty. 
	Specification 2: Having knowledge of a lawful order issued by his First Sergeant  to remain at least 100 feet from the residence and not to make phone contact or other means of communication with H_ N_, an order it was his duty to obey, did, at Bolling Air Force Base, Washington, DC on or about 20010802, fail to obey the same by both wrongfully entering the residence and wrongfully making a phone contact with H_ N_.  Plea: Guilty.  Finding: Guilty. 
	Specification 3: Having knowledge of a lawful order issued by his First Sergeant  to remain at least 100 feet from the residence and not to make phone contact or other means of communication with H_ N_, an order it was his duty to obey, did, in Ohio, in September 2001,  fail to obey the same by wrongfully visiting H_ N_, in person, at his mother’s house.  Plea: Withdrawal.  Finding: Withdrawal.
	Charge II: Violation of the UCMJ, Article 128: (2 specifications).
	Specification 1: Did, at Bolling Air Force Base, Washington, DC, on or about 20010707, unlawfully strike H_ N_ on the ribs with closed fist, and choke her.  Plea: Guilty.  Finding: Guilty. 
	Specification 2: Did, at Bolling Air Force Base, Washington, DC, on or about 20010802, unlawfully pull the hair of H_ N_.  Plea: Guilty.  Finding: Guilty.
	Charge III: Violation of the UCMJ, Article 134 (3 specifications).
	Specification 1: Did, at Marine Barracks 8th & I, Washington, DC, on or about 20010710, wrongfully communicate to H_ N_ a threat by telling her that “She wouldn’t live through the night” and that he was coming over to “finish the job he started” or words to that effect.  Plea: Guilty.  Finding: Guilty:
	Specification 2: Did, at Bolling Air Force Base, Washington, DC, on or about 20010802, wrongfully communicate to H_ N_ a threat by telling her that “I am ready to kill you” or words to that effect.  Plea: Guilty.  Finding: Guilty:   
	Specification 3: Did, at Marine Barracks 8th & I, Washington, DC, in  200110, wrongfully endeavor to influence the testimony of H_ N as a witness before a court martial in the case of United States v. Lance Corporal C_ W. N_, U.S. Marine Corps, by communicating to the said H_ N_ a threat to wit: “If you mess up my career, I’ve got your girls” or words to that effect, unless she testified falsely concerning H_ N_’s assault allegation against Lance Corporal C_ W. N_, U.S. Marine Corps, at such trial.  Plea: Guilty.  Finding: Guilty:   
	Sentence: Forfeiture of $680.00 per month for 5 months, confinement for 160 days, and a bad conduct discharge, reduction to E-1.
	CA action 20020711:  Sentence approved and, except for the bad conduct discharge will be executed, but the execution of that part of the sentence extending to adjudged and automatic forfeitures will be waived for a period of six months from the date of this action and will be paid to H_ N, his dependent, for her benefits.

Elements of Discharge:  [Bad Conduct Discharge]

Record of Trial Complete:				
Date Charge(s) Preferred:				20010828
Date Charges Referred to Special Court-Martial:	20010829
Trial Date:					20011203
Applicant requested Bad Conduct Discharge:	
Length of BCD Suspension:			
Date Applicant to Confinement:			20011203
Date Applicant from Confinement:			20020415
Date Applicant to Voluntary Appellate Leave:	20020415
NMCCA Action and Date:				AFFIRMED FINDINGS AND SENTENCE ON 20030813
USCAAF Action and Date:  			PETITION FOR REVIEW DENIED ON 20040113
Date of SSPCMO ordering BCD be executed:	20040412
Date Applicant Discharged:			20040413

Additional Information Considered by Board

Type of documentation submitted by the Applicant and considered by the Board
       
       	Document Type					#Pages
       Related to Period of Service Under Review:
	Service/Medical Record:				17/36     
	Other Period of Service:				0     
       Related to Post-Service Period:
	Community Service:				0     
	Education:					1     
	Employment:					0     
	Health/Medical:					0     
	Character Statements:				0     
	Criminal Records Checks:				0     
	Additional Statements from Applicant:		2     
        Other Documentation (Describe Below)			13     

        Total Number of Pages:				69     

       Description of Other Documentation:
       	DD Form 214 (ARMY/RA) (1 page)
DD Form 214 (ARNGUS) (1 page)
Applicant’s divorce decree (11 pages)	

Pertinent Regulation/Law

A.  Paragraph 1105, DISCHARGE ADJUDGED BY SENTENCE OF COURT-MARTIAL, 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 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 92, failure to obey order, regulation, Article 128, Assault, and Article 134, Communicating a threat.

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