ex-, USMC
MD07-00236

Current Discharge and Applicant’s Request

Application Received:  20061218				Characterization Received:   DISCHARGE
Narrative Reason:  AS A RESULT OF A COURT-MARTIAL (SPCM) OTHER         Authority:  MARCORSEPMAN 1105

Applicant’s Request:	Characterization change to:    
			Narrative Reason change to: 
Applicant’s Issues:	1. Mentally ill at time of misconduct
			2. Post-service conduct

Decision

By a vote of  the Characterization shall   DISCHARGE.	
By a vote of  the Narrative Reason shall  COURT MARTIAL.

Date:  20070920	     			         		        Location:  Washington D.C.  

Discussion

Issue 1.  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 provides no evidence to support his claim of mental illness and/or how such alleged illness may have excused or mitigated his misconduct.  After a thorough review of the Applicant’s record 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 2.  The Applicant indicates that he is “a better person today.”  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.  Verifiable proof of post-service accomplishments must be provided in order for the Applicant to claim post-service conduct and behavior as a reason to upgrade a less than honorable discharge.  The NDRB encourages the Applicant to continue his efforts to become a productive citizen; however, the Applicant provides no evidence of any post-service conduct tending to warrant clemency at this time.  

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:

	  “JJE2”
	  “COURT MARTIAL”

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)	19920820 - 19930602  		Active:   	
Period of Service Under Review:
Date of Enlistment: 19930603	Years Contracted:  ; Extension:    		Date of Discharge:  19980312
Length of Service:  04  Yrs  06  Mths  19  Dys	Lost Time:  Days :  UNABLE TO DETERMINE  Days Confined:  36
Education Level:         Age at Enlistment: 17        AFQT:  39        MOS: 0311        Highest Rank:  
Proficiency/Conduct marks (# of occasions):	3.1(2)/3.1(2)	Fitness reports:   
Awards and Decorations (per DD 214):  NATIONAL DEFENSE SERVICE MEDAL, RIFLE MARKSMANSHIP BADGE

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

19940103:	CO's NJP -- Viol UCMJ Art. 121 – Attempt to steal merchandise from MCX on or about 1452, 19931217.  Awarded - FOP ($217.00) for (1 month); Restr for (14days); Extra duties (14 days).

19940606:	CO's NJP -- Viol UCMJ Art. 86 – UA from 0700 – 1300, 19940509.
	 Awarded - FOP ($376.00) for (2 months); RIR (E-1); Extra duties (45 days).

19940706:	Applicant refused counseling and treatment for drug and alcohol dependencies.

Discharge Process

Charge(s) and Specification(s):  Article 86, UA from 19940110 until 19940207; Article 112a, Use marijuana and cocaine.
Preferred:  19940303 and 19940318	Court-martial:  19940328		Findings:  Guilty of Article(s) 86, 112a
Sentence:  BCD; Conf 45 days; RIR E-1; FOP  $555.00 for 2 months; 	CA action:  19941017	NC&PB Action:  NONE    	
Appellate Review Complete: 19980224   BCD ordered executed: 19980312 SSPCMCO No. 98-439   Discharged:  19980312

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 P1900.16E), effective 950818 until 010831. 

B.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part IV, Para 403m(7)(a), Presumption Concerning Court-Martial Specifications.

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, Wrongful use, possession, etc., of controlled substances.

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