ex-, USMC
MD07-00453

Current Discharge and Applicant’s Request

Application Received:  20070221 	Characterization Received:  
Narrative Reason:  COURT-MARTIAL 		Authority:  MARCORSEPMAN 1105

Applicant’s Request:	Characterization change to:  
			Narrative Reason change to: UNSATISFACTORY PERFORMANCE
Applicant’s Issues:	1. Reenlistment Opportunities
			2. Clemency
			3. Post Service

Decision

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

Date:  20071025       					Location:  Washington D.C.  

Discussion

Issue 1:   either  which the Board cannot form the basis of relief for the Applicant, or  the Board does not have the authority to grant the relief for which the Applicant petitioned.  The Applicant is directed to the Addendum regarding .  

Issue 2: ().  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.  The NDRB found the evidence of record did not contain sufficient mitigating or extenuating factors to offset the seriousness of the offense for which the discharge was awarded.  In addition, the reason for discharge, convicted by special court-martial, is most appropriate.  After a thorough review of the Applicant’s record, issues submitted, and post service accomplishments, the Board determined that clemency was not warranted and that the sentence awarded the Applicant at his court-martial was appropriate for the offense that he committed. 

Issue 3: (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, or good conduct 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 no documentation of post-service accomplishments.  The Applicant's efforts need to be more encompassing.  For example, the Applicant could have produced evidence of a verifiable and continuous employment record, documentation of community service, educational pursuits, and certification of non-involvement with civil authorities.  The Board determined that the documentation provided by the Applicant did not mitigate the misconduct 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)	19950417 - 19950423  		Active:   
Period of Service Under Review:
Date of Enlistment: 19950424	Years Contracted:  ; Extension:  	Date of Discharge:  20000510
Length of Service:  05  Yrs  00  Mths  17  Dys	Lost Time:  Days UA:  25  Days Confined:  90
Education Level:  	Age at Enlistment:  	AFQT:  58	MOS:  1812  Highest Rank:  
Proficiency/Conduct marks (# of occasions):	4.1(9)/3.4(9)	Fitness reports:   
Awards and Decorations (per DD 214):  NATIONAL DEFENSE SERVICE MEDAL, RIFLE EXPERT BADGE (2D AWD)

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

19960307:	NJP -- Viol UCMJ Art. 86 - Unauthorized absence (3 days).
	Awarded - CCU for (7 days).  CCU suspended for 6 months.

19961008:	MARCORSEPMAN 6105 counseling for unauthorized absence on 19960923.

19970722:	NJP -- Viol UCMJ Art. 86 - Unauthorized absence 0700, 19970621 to 0010, 19970622.
	Awarded - FOP ($258.00) for (1 month); Restr for (8 days).  FOP suspended for 6 months.

19970728:	Vacate suspended FOP awarded at NJP dated 19970722.

19971001:	NJP -- Viol UCMJ Art. 134 (2 specs) - (1) Broke restriction 2220-0020, 19970725, (2) Broke restriction on 2220-0020, 19970725 by consuming alcohol., Art. 90 - Willfully disobeyed 2nd Lt by operating his vehicle after being ordered not to.
	Awarded - CCU for (30 days), FOP ($505.00) for (2 months); RIR (E-2).  FOP suspended for 6 months.

19971002:	Applicant to confinement.

19971031:	Applicant from confinement.

19971205:	NJP -- Viol UCMJ Art. 91 (2 specs) - Disobeyed Sgt by failing to move all of his military gear and personal belongings from HP 405 room 229 to HP 405 room 203 at 1630 (2) Disobeyed Sgt by failing to move all of his military gear and personal belongings from HP 405 room 209 to HP 405 room 203 by 0700, 19971204, Art. 86 - Fail to go at the time prescribed to morning formation.
	Awarded - FOP ($235.00) for (1month); RIR (paygrade); Restr for (14 days); Extra duties (14 days).

19980521:	NJP -- Viol UCMJ Art. 92 - Disobeyed LCDR’s written order to stay SIQ on or before 19980513.
	Awarded - FOP ($500.00) for (1 month); RIR (E-1); Restr for (45 days); Extra duties (45 days).  FOP suspended for 6 months.

19980824:	Applicant to unauthorized absence 0701.

19980829:	Applicant from unauthorized absence 2000 (5 days/surrendered).

19980928:	Applicant to unauthorized absence 0701.

19981014:	Applicant in hands of civilian authorities 1400.

19981015:	Applicant from unauthorized absence 2130 (18 days/apprehended).

19981016:	Applicant to pretrial confinement.

19981201:	Applicant request appellate leave.

19981209:	Appellate leave approved.

19981215:	Applicant from confinement (61 days).

19990810:	Applicant to involuntary appellate leave.

Discharge Process

Charge(s) and Specification(s):  Article 86 (2 specs), 87, (1) Unauthorized absence from 19980824 until 19980829, (2) Unauthoried absence from 19980928 until 19981013; Article 87, Miss movement on 19980824.
Preferred:  19981104	Court-martial:  19981123	Findings:  Guilty of Article(s) 86 and 87
Sentence:  BCD; Conf 90 days; FOP  $600.00 for 2 months 	CA action:  19990720 suspended confinement in excess of 75 days for 12 months.
NC&PB Action:  NONE    Clemency:     Parole:     Restoration:  	
Appellate Review Complete:  20000307	BCD ordered executed:  20000510 SSPCMCO No. 00-446
Applicant Discharged:  20000510

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 19950818 until 20010831.

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