ex-LCPL, USMC
MD07-00425

Current Discharge and Applicant’s Request

Application Received:  20070125 	Characterization Received:  
Narrative Reason:  IN LIEU OF TRIAL BY COURT-MARTIAL  	Authority:  MARCORSEPMAN para 6419

Applicant’s Request:	Characterization change to:  
			Narrative Reason change to: 
Applicant’s Issues:	1.  Directed to “go home” due to in service injuries.
			2.  Post service.

Decision

By a vote of  the Characterization shall  .
By a vote of  the Narrative Reason shall  IN LIEU OF TRIAL BY COURT-MARTIAL 

Date:  20071018  					Location:  Washington D.C.  

Discussion

Issue 1 (Equity).  The government enjoys a presumption of regularity in the conduct of its affairs.  The Applicant bears the burden of overcoming this presumption through the presentation of substantial and credible evidence to support his issue.  There is no evidence in the record, nor has the Applicant produced any evidence, to support the contention that the Marine Corps told him to “go home and not to come back” after his injury.  The Applicant’s statements alone do not overcome the government’s presumption of regularity in this case.  When a Marine’s service has been honest and faithful, it is appropriate to characterize that service under honorable conditions.  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 Applicant’s conduct during the current period of service, which forms the primary basis for determining the character of his service was marred by a pending trial by court martial for violations of the Uniform Code of Military Justice (UCMJ) Articles 86 and 87.  Violations of UCMJ Article 86, Unauthorized absence over 30 days and Article 87, Missing a movement are considered  serious offenses for which a punitive discharge is authorized if adjudged by a Special or General Courts Martial.  Marines may be separated upon their request in lieu of trial by special or general courts-martial if charges have been preferred with respect to an offense for which a punitive discharge is authorized and it has been determined that the Marine is unqualified for future military service.  The Applicant, after consultation with Defense Council, willfully signed the request.  A change of Characterization of Service would be inappropriate.  

Issue 2 (Equity).   The NDRB is authorized to consider post-service factors in the recharacterization of a discharge.  However, there is no law or regulation, which provides that an unfavorable discharge, may be upgraded based solely on the passage of time, good conduct, or favorable endorsements in the civilian life subsequent to leaving the service.  Normally, to permit relief, a procedural impropriety or inequity must have been found to have existed during the period of enlistment in question.  Outstanding post-service conduct, to the extent that such matters provide a basis for a more thorough understanding of the Applicant’s performance and conduct during the period of service under review, is considered.  The Applicant provided  character statements and employment endorsements as documentation of post-service accomplishments.  The Applicant's efforts need to be more encompassing than those provided.  For example, the Applicant could have produced evidence of continuing educational pursuits, a verifiable and continuous employment record, documentation of community service, and certification of non-involvement with civil authorities.  The Board determined that the documentation provided by the Applicant did not mitigate the circumstances that resulted in the characterization of discharge.  

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) 19921007 - 19930314   		
Period of Service Under Review:
Date of Enlistment: 930315	Years Contracted:  4; Extension:  	Date of Discharge: 19980805     
Length of Service:  03 Yrs    04 Mths      21Dys	Lost Time:  Days UA:  820  Days Confined:  
Education Level:  12	Age at Enlistment:  23	AFQT:  34   	MOS:  0311      Highest Rank:  LCPL
Proficiency/Conduct marks (# of occasions):  NOT FOUND IN RECORD
Awards and Decorations (per DD 214):  NATIONAL DEFENSE SERVICE MEDAL, SEA SERVICE DEPLOYMENT RIBBON W/ 1 STAR, ARMED FORCES EXPEDITIONARY MEDAL, MERITORIOUS MAST, RIFLE SHARPSHOOTER BADGE.       

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

19960123:	Medical Record:  Emergency Room visit for back pain after falling off a 10 foot wall onto his back.  [Extracted from Urgent Care Clinic note from 19960127.]  

19960124:	Medical Record:  Follow up at 3/2 BAS complaining of back injury the day prior on the obstacle course.  Contusion to left upper back.  Light duty for six days.

19960127:	Medical Record:  After Hours Urgent Care Clinic .  X-rays show negative results.  Back strain. 

19960130:	Medical Record:  Follow up at 3/2 BAS.  Contusion to left upper back.  Sick in quarters for 2 days.

19960205:	Medical Record:  Follow up at 3/2 BAS.  Contusion to left upper back.  Plan for light duty.  No deployments at this time.
19960209:	Medical Record:  Emergency room visit for motor vehicle accident.  Note that Applicant has been going to physical therapy for a back injury which occurred two weeks ago.      

19960307:	Medical Record:  Follow up at 3/2 BAS requesting light duty chit.  Physical Therapy Clinic consulted and reports that Applicant cancelled last appointment on 19960306.  CDR P_ recommends full duty.  

19960408:	Applicant to unauthorized absence status.

19980614:	Applicant apprehended and sent to military confinement.

SEPARATION IN LIEU OF TRIAL

Discharge Process

Charge(s) Preferred:  				NOT FOUND IN RECORD
Charge(s) and Specification(s):
	Article 86:  From 19960408 until apprehended 19980611. 
	Article 87:  On or about 19970605. 
Date Applicant Submitted SILT request:		19980709
	Consulted with or Waived Counsel:		
	Acknowledged Understanding Elements:	
	Acknowledged Guilt to:			Article(s) 86 and 87 
		BCD/DD authorized for offense(s)	
	Acknowledged Consequences of OTH:	
	Type of Characterization Requested:	

Commanding Officer Recommendation (date):	   (19980715)
Separation Authority (date):		COMMANDING GENERAL, 2D MARINE DIVISION (19980804)
	Reason for Discharge directed:		
	Characterization directed:			
Date Applicant Discharged:			19980805

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.  The Marine Corps Separation and Retirement Manual, (MCO P1900.16E), effective 18 August 1995 until 31 August 2001, Paragraph 6419, SEPARATION IN LIEU OF TRIAL BY COURT-MARTIAL.

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

D.  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 86 and 87.

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