ex-, USMC
MD07-00361

Current Discharge and Applicant’s Request

Application Received:  20070129				     Characterization Received:   DISCHARGE
Narrative Reason:  AS A RESULT OF COURT-MARTIAL (SPCM) OTHER 	  Authority:  MARCORSEPMAN PAR 1105

Applicant’s Request:	Characterization change to:  
			Narrative Reason change to: 
Applicant’s Issues:	1. Clemency because misconduct caused by medical condition and post-service conduct

Decision

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

Date:  20071011  	        		        Location:  Washington D.C.  

Discussion

Issue 1 (Clemency).  The Applicant’s claim of entering an unauthorized absence status due to his mental and emotional reaction to his health issues conflicts with his unsworn testimony during his court-martial at which he stated the reason for his unauthorized absence was to take care of his mother.  Though his testimony was unsworn, and not subject to cross-examination, the Board did not conclude that the Applicant’s in-court testimony was untruthful.  The Board did conclude that the Applicant’s stated reason for his unauthorized absence in this petition, even taken at face value, did not constitute a defense or serve to mitigate the misconduct for which he was discharged, especially in light of the medical care which he could have received had he fulfilled his freely taken obligation of service.  At trial, the Applicant freely requested a punitive discharge, and explicitly acknowledged the nature and ramifications of a bad conduct discharge.  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 could be provided to the Board to corroborate claims of post-service behavior 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.  The Applicant has not provided any post-service documentation to consider mitigating the misconduct that resulted in the characterization of discharge.

Per regulation, relevant and material facts stated in a court-martial specification shall be presumed by the NDRB as established facts.  Action may extend only to changing the discharge for purposes of clemency.  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  

. 

Summary of Service

Prior Service:
Inactive: USMCR (DEP)	19971016 - 19971021  		Active:   	
Period of Service Under Review:
Date of Enlistment: 19971022		Years Contracted:  ; Extension:  	Date of Discharge:  19990604
Length of Service:  01  Yrs  03  Mths  07  Dys	Lost Time:  Days UA:  88  Days Confined:  37
Education Level:  	Age at Enlistment:  	AFQT:  NOT FOUND IN RECORD 
MOS:  9971  	Highest Rank:  		Proficiency/Conduct marks (# of occasions):	1.9(3)/1.4(3)	
Awards and Decorations (per DD 214):  RIFLE SHARPSHOOTER BADGE

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

None.

Discharge Process

Charge(s) and Specification(s):  Article 86, (2 Specs): 
	Spec 1: Unauthorized absence from 19980216 to 19980302.
	Spec 2: Unauthorized absence from 19980318 to 19980602.
Preferred:  19980605	Court-martial:  19980708	Findings:  Guilty of Article(s) 86  	Sentence:  BCD; Conf 45 days. 	 CA action:  19980903	NC&PB Action:  NONE FOUND IN RECORD 	Appellate Review Complete:  19990526
BCD ordered executed:  19990604 SSPCMCO No. 99-777			Applicant Discharged:  19990604

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.

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