ex-, USMC
MD06-01216

Current Discharge and Applicant’s Request

Application Received:  				20060914
	Characterization of Service:		
	Narrative Reason:				AS A RESULT OF COURT-MARTIAL (SPCM) OTHER
	Discharge Authority:			MARCORSEPMAN 1105
	Duty Assignment/Command at Discharge:	3DBN 7THMAR 1STMARDIV 29 PALMS, CA

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

Applicant’s issues (as summarized by NDRB):
1.  Enhance employment opportunities
2.  Misconduct was due to PTSD

Decision

By a vote of  the Characterization shall  .	
By a vote of  the Narrative Reason shall  AS A RESULT OF COURT-MARTIAL (SPCM) OTHER.

Date of Decision:  20070816			Location of Board:  Washington D.C.
Regarding BCD, The Board found clemency was: 	

Issue 1:   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 2 ().  The Board construed the Applicant’s assertion that PTSD was “the main underlying cause” of his misconduct to be a claim that he was not criminally responsible for his misconduct.  Relevant and material facts stated in a court-martial specification of which an Applicant was found guilty are presumed by the Board to be established facts.  With respect to a discharge adjudged by a court-martial case, the action of the Board is restricted to upgrades based on clemency.  Clemency is an act of leniency that reduces the severity of the punishment imposed.  The Board noted that the Applicant did not raise any mental health issues during his court-martial, as either a potential defense or in extenuation or mitigation of the offenses.  The Board found no evidence in the record to indicate that the Applicant was not responsible for his behavior.  After a thorough review of the Applicant’s record and issues and evidence submitted, 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.  

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 that clemency was not warranted.

Summary of Service

Prior Service:
Inactive: USMCR (DEP)				19830426 - 19840103  
Active:   		              	 		19840104 - 19880103  
Inactive: USMCR (DEP)				19890428 - 19890515  

Period of Service Under Review:
Date of Enlistment:  				19890516
Years Contracted:  				 
Date of Discharge:				19940218
Length of Service					4  Yrs  9  Mths  3  Dys  (does not exclude lost time)
	Time Lost During This Period:		149 Days:  UA:    Confinement:  Unable to determine
	
Education Level:  				
Age at this Enlistment:  				
AFQT:  						34
MOS:						0351
Highest Rank:					
Proficiency/Conduct marks (# of occasions):		3.9(8)/3.4(8)
Fitness reports available for review?		 

Awards and Decorations (as listed on the DD Form 214):  RIFLE EXPERT BADGE, NATIONAL DEFENSE SERVICE MEDAL, ARMED FORCES EXPEDITIONARY MEDAL, COMBAT ACTION RIBBON, SEA SERVICE DEPLOYMENT RIBBON W/1 STAR

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

19890322:	Applicant briefed on and certified understanding of Marine Corps policy concerning illegal use of drugs.

19900108:	Counseled for failing prescribed M47 Dragon Gunner Course class 9-89.

19901205:	NJP for violation(s) of UCMJ, Article 92:  Violate a lawful general instruction by being off base without an authorized liberty card, and Article 134: Drunk and disorderly on 19900831.  Award:  FOP $481.00 for 2 months, rest/extra duty for 45 days, Red to E-3.  Redsuspended 6 months.  Not appealed.

19910613:	Counseled for being a a flight risk and warned further incidents will result in pretrial confinement.

19911008:	Special Court-Martial:
	Charge I: Article 86, Specification:  Fail to go to physical training on 0800, 19910611.
	Charge II: Article 112a, Specification 1: use cocaine; Specification 2: use marijuana. 
	Finding: To Charges and the specifications thereunder, guilty.
	Sentence: Forfeiture of $500.00 per month for 4 months, confinement for 120 days, reduction to E-2.
	CA action 19911106:  Sentence approved and ordered executed but the portion of the sentence thereof adjudging confinement in excess of 30 days is suspended for a period of 12 months.

19911008:	Applicant to confinement at Base Brig, Camp Pendleton.  [Extracted from DD Form 293, Block 29.]

19911031:	Applicant from confinement.  [Extracted from DD Form 293, Block 29.]

19920131:	Counseled regarding illegal drug involvement.  

19920423:	Confinement suspended on 19911106 vacated this date.

Elements of Discharge:  [Bad Conduct Discharge]

Date Charge(s) Preferred:				19920416
Charge(s) and Specification(s):
	Article 80:  Attempt to distribute marijuana.
	Article 86: (2 specifications) Fail to go to appointed place of duty on 19920325 and 19920326.
	Article 91: (2 specifications) Disobey an NCO, and Disrespectful toward a noncommissioned officer
	Article112a: (2 specifications) use marijuana during February - March 1992, itroduce marijuana onto installation.
	Article 121: Steal a stereo and six cassette tapes of a value in excess of $100.00 on 19920321
	Article 130: Housebreaking into Sgt W_’s barracks room with intent to commit larceny.
Court-martial Date:				19920526
Findings:					Guilty of Article(s) 86, 91, 112a, 121
Sentence:					BAD CONDUCT DISCHARGE
	Confinement:				5 months
	Reduction:				E-1
	Forfeiture:				$500.00 for 5 months
	Other: 					None.
Date Applicant to Voluntary Appellate Leave:	19920710
Date of Convening Authority action			19921208
Date Applicant to Involuntary Appellate Leave:	19940922
Date of NC&PB Action:				19930506
	Clemency:				
	Parole:					
	Restoration:				
Date Appellate Review Complete:			19931129
Date BCD ordered executed:			19940218 SSPCMCO No. 258-93
Date Applicant Discharged:			19940218

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)  Chemical Dependence Treatment Program Problem List and Treatment Plan (2 pages), Applicant’s refill prescription for Risperidone and Citalopram Hydrobromide, Certificate of Graduation from The Department of Veterans Affairs for successfully completion of the Psychosocial Residential Rehabilitation Treatment Program, Certificate of Completion of the Post-Traumatic Stress Program. 

Pertinent Regulation/Law

A.  Paragraph 1105, DISCHARGE ADJUDGED BY SENTENCE OF COURTS-MARTIAL, 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.

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 91, Insubordinate conduct toward warrant officer, noncommissioned officer, or petty officer; Article 112a, Wrongful use, possession etc. of controlled substances; and Article 121, Larceny.

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