ex-, USMC
MD07-00188

Current Discharge and Applicant’s Request

Application Received:  20061128	Characterization Received:   DISCHARGE
Narrative Reason:  COURT MARTIAL 	Authority:  MARCORSEPMAN 1105

Applicant’s Request:	Characterization change to:    
			Narrative Reason change to: 
Applicant’s Issues:	1.  Employment opportunities.
			2.  Clemency.

Decision

By a vote of 3-2 the Characterization shall change to UNDER OTHER THAN HONORABLE CONDITIONS. 	
By a vote of 5-0 the Narrative Reason shall remain COURT-MARTIAL.

Date:  20070912     Location:  Washington D.C.        The Board found that 

Discussion

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 the Addendum. 

Issue 2 (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.  There is credible evidence in the record that the Applicant used illegal drugs.  The evidence of record does not demonstrate that the Applicant was not responsible for her conduct or that she should not be held accountable for her actions.  An under other than honorable conditions discharge is warranted when significant negative aspects of a member’s conduct or performance of duty outweigh the positive aspects of the member’s military record.  The reason for discharge, convicted by special court-martial, is most appropriate.  After a thorough review of the Applicant’s record, issues submitted, and the standards of discipline, the Board determined that clemency was warranted.  An upgrade to general (under honorable conditions) would not be appropriate under current standards of naval discipline.

Summary of Service

Prior Service:
Inactive: USMCR (DEP)	19990326 - 19990329  			
Period of Service Under Review:
Date of Enlistment: 19990330	Years Contracted:  ; Extension:    		Date of Discharge:  20030619
Length of Service:  04  Yrs  01  Mths  13  Dys	Lost Time:  Days UA:    Days Confined:  37
Education Level:  	Age at Enlistment:  	AFQT:  79	MOS:  4066  Highest Rank:  
Proficiency/Conduct marks (# of occasions):	4.2(2)/4.3(2)	 
Awards and Decorations (per DD 214):  RIFLE EXPERT BADGE, NATIONAL DEFENSE SERVICE MEDAL, LETTER OF APPRECIATION

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

20000310:	CO's NJP -- Viol UCMJ Art. 121 – Wrongfully used a credit card number belonging to Mrs N_ B_ to pay his phone bill in the amount of $150.00.  Awarded - FOP ($502.00) for (2months); RIR (E-1); Restr for (30days); Extra duties (30days).

20000803:	CO's NJP -- Viol UCMJ Art. 86 – Failed to report in off of emergency leave.  Awarded -  Restr for (14days); Extra duties (14days).

20011217:	MARCORSEPMAN 6105 counseling for lack of judgment which resulted in your arrest by civilian authorities (Downey Police Department) for possession of a controlled substance.  Discharge warning issued.

20020225:	MARCORSEPMAN 6105 counseling for illegal drug involvement, specifically your THC, Alcohol, Benzodia Zepine, Nordia Zepine usage identified through urinalysis confirmed by the Armed Forces Institute of Pathology, Washington, D.C msg 2812847.

Discharge Process

Charge(s) and Specification(s):  Article 112a (2 specs), Spec 1: Wrongful use of marijuana; Spec 2: Wrongfully possess some amount of ketamine.
Preferred:  20020311	Court-martial:  20020415	Findings:  Guilty of Article(s) 112a
Sentence:  BCD; Conf 75days; RIR E-1 	 	CA action:  20020820
NC&PB Action:  NONE    Clemency:     				
Appellate Review Complete:  20030603	BCD ordered executed:  20030610 SSPCMCO No. 03-1043
Applicant Discharged:  20030619

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)       

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 112a.

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