ex-, USMC
MD07-00400

Current Discharge and Applicant’s Request

Application Received:  20070206 	Characterization Received:   DISCHARGE
Narrative Reason:  AS A RESULT OF COURT-MARTIAL (SPCM) OTHER 	Authority:  MARCORSEPMAN 1105

Applicant’s Request:	Characterization change to:  
			Narrative Reason change to: 
Applicant’s Issues:	1. Clemency because should have received medical discharge, was court-martialed beyond EAS, misconduct did not warrant punitive discharge, need medical benefits.

Decision

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

Date:  20071018  				        Location:  Washington D.C.  

Discussion

Issue 1 (Clemency).  In response to the Applicant’s issue, 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.  By regulation, adjudication of misconduct takes precedence over disability determinations.  The Board noted that the Applicant acknowledged in court that he was on, and remained on, active-duty and was subject to the jurisdiction of the court.  After a thorough review of the Applicant’s record, issues submitted, and post service accomplishments, the Board determined t that the sentence awarded the Applicant at his court-martial was appropriate for the offenses he committed and that clemency was not warranted.

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  

Summary of Service

Prior Service:
Inactive: USMCR (DEP)	19850307 - 19850916  		Active:   	
Period of Service Under Review:
Date of Enlistment: 19850917		Years Contracted:  ; Extension:  	Date of Discharge:  19950427
Length of Service:  09  Yrs  07  Mths  11  Dys	Lost Time:  Days UA:    Days Confined:  123
Education Level:  	Age at Enlistment:  	AFQT:  55	MOS:  0842  Highest Rank:  
Proficiency/Conduct marks (# of occasions):	4.2(20)/4.1(20)		Fitness reports:   
Awards and Decorations (per DD 214):  RIFLE EXPERT BADGE, 4TH AWARD, LOA, NDSM, SSDR, GCM

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

19871029:	NJP -- Viol UCMJ Art. 92 – Failed to obey Sgt by not surrendering 2 ID cards in his possession.
	Awarded - FOP ($200.00) for (1 months); RIR (E-3).

19871130:	NJP -- Viol UCMJ Art. 112a – Wrongfully use cocaine.
	Awarded - FOP ($369.00) for (2 months); RIR (E-2); Restr (45 days); Extra Duties (45 days); 15 days Restr/Extra Duties susp 6 months.

19871209:	MARCORSEPMAN 6105 counseling for violations of the UCMJ.

19871211:	NJP -- Viol UCMJ Art. 92 – Violate lawful order by possessing alcohol.
	Awarded - Restr (14 days), susp 6 months.

19880608:	MARCORSEPMAN 6105 counseling for frequent involvement with military authorities.

19900330:	Page 11 counseling for lack of professionalism toward SNCO while on liberty.

19910706:	Medical Board Report:
	Diagnosis:  Recurrent Herpes Simplex Keratitis on left eye
	Recommendation:  Limited Duty, expires 19930126.

19910823:	Medical Board Report forwarded to Physical Evaluation Board for fitness for duty determination.

Discharge Process

Charge(s) and Specification(s):  Article 81 (2 specs conspire to distribute marijuana); Article 112a (2 specs possess marijuana, 2 specs distribute marijuana); Article 134 (Solicit possession marijuana)  	Preferred:  19920228 and 19920406	
Court-martial:  19920504	Findings:  Guilty of Article(s) 81 (1 spec), 112a (2 specs distribute marijuana)
Sentence:  BCD; Conf 5 months; RIR E-1; FOP  $400.00 x 5; Other:  NONE 	 CA action:  19921019
NC&PB Action:  19921210 Clemency:     			Appellate Review Complete:  19940404	
BCD ordered executed:  19940627 SSPCMCO No. 1-94			Applicant Discharged:  19950427

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.  Marine Corps Separation and Retirement Manual, (MCO P1900.16D), Paragraph 1105, DISCHARGE ADJUDGED BY SENTENCE OF COURTS-MARTIAL, effective 27 Jun 89 until 17 Aug 95.

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