ex-, USMC
MD07-00721

Current Discharge and Applicant’s Request

Application Received:  20070426 	Characterization Received:  
Narrative Reason:  IN LIEU OF TRIAL BY COURT-MARTIAL 	Authority:  MARCORSEPMAN 6419

Applicant’s Request:	Characterization change to:  
			Narrative Reason change to: 
Applicant’s Issues:	1. Did not commit misconduct, admitted it due to harassment from SgtMaj
			2. Post-service conduct

Decision

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

Date:  20071205		Location:  Washington D.C.	 Representation:  

Discussion

Issue 1 ().  The Applicant, with the advice of counsel, admitted that he was guilty of violating 2 articles of the Uniform Code of Military Justice, both of which constituted serious offenses for which a punitive discharge was authorized under the Manual for Courts-Martial.  In addition, there is more than sufficient evidence in his record to support the conclusion that his admission of guilt was credible.  The Board found no evidence that the Applicant was in any way coerced, pressured, or deceived into submitting his request for administrative separation.  The Applicant’s subjective view of the Sergeant Major’s intentions does not overcome the presumption of regularity in this case.  The evidence does not indicate that the Applicant was not responsible for his conduct or that he should not be held accountable for his actions.

Issue 2 (). 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.  The NDRB is authorized to consider outstanding post-service factors in the recharacterization of a discharge 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.  After a complete review of the entire record, including the evidence submitted by the Applicant, the Board determined that the discharge was appropriate and that the evidence of post-service conduct was found not to mitigate the conduct which precipitated the 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)	19990522 - 19990523  		Active:   	19990524 - 20021119  
Period of Service Under Review:
Date of Enlistment: 20021120	Years Contracted:  , 7 WEEKS	Date of Discharge:  20060202
Length of Service:  03  Yrs  02  Mths  13  Dys	Lost Time:  Days UA:    Days Confined:  
Education Level:  	Age at Enlistment:  	AFQT:  33	MOS:  0311  Highest Rank:  
Proficiency/Conduct marks (# of occasions):	4.5(4)/4.5(4)	Fitness reports:   
Awards and Decorations (per DD 214):  Rifle , Pistol MM, GCM, KDSM, GWOTSM, NDSM, SSDR, LtrAppr (3), CERTCOM (unit)  

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

20041014:	MARCORSEPMAN 6105 counseling for numerous incidents of alleged spouse abuse and child neglect; worthless checks from closed account; violation of restraining order and military protective order; lack of integrity in informing command of status and whereabouts of family.  Applicant submitted a rebuttal statement.

20041203:	MARCORSEPMAN 6105 counseling for possible insubordinate behavior; being evasive regarding family care plan; not cooperating with chain of command regarding family situation.  Applicant submitted rebuttal statement.

20050408:	MARCORSEPMAN 6105 counseling for UA on 20050319 due to being IHCA for criminal domestic violence.  Applicant submitted rebuttal statement.

20050418:	NJP -- Viol UCMJ Art. 86 – 20050405, UA from morning formation.
	Awarded - FOP ($480.00) for (1 months); Restr for (14 days), susp 3 months; Extra duties (14 days), susp 3 months.

20050517:	MARCORSEPMAN 6105 counseling for NJP of 20050418.

20050602:	MARCORSEPMAN 6105 counseling for being IHCA on 20050520 for criminal domestic violence.  Applicant submitted rebuttal statement.

20050912:	MARCORSEPMAN 6105 counseling for 15 minute UA on 20050817 and staying in Cpl’s military quarters with 2 dependents while drawing full BAH.

20050921:	SPCM -- Viol UCMJ Art. 84 (NDRB note:  should be Art 91), disrespectful in deportment toward SgtMaj.  Plea: NG.  Finding:  NG.  	Art 92, (2 Specs) – violate no contact order w/R_ R_ on 20050520 and 20050525.  Plea: NG. Finding: WD.
	[Extracted from Applicant’s submission of copy of SPCMCO 02-2005.]

20051202:	Civil conviction:  State of South Carolina, Criminal Domestic Violence.
	[Extracted from counseling entry of 20051212.]

20051205:	Applicant to IHCA.

20051208:	Applicant from IHCA.

20051209:	Applicant to pretrial confinement.

20051212:	MARCORSEPMAN 6105 counseling for IHCA on 20051116 for criminal domestic violence.

20051212:	MARCORSEPMAN 6105 counseling for IHCA on 20051202 due to civil conviction.

20051221:	Page 11 Service Record counseling for Case Review Committee finding of substantiated spouse abuse on 20050521 and classification as a “Treatment Failure.”

20060131:	Applicant from pretrial confinement to duty.

Discharge Process

Charge(s) Preferred:  20051222
Charge(s) and Specification(s):
	Article 92: 20051205, violate general order by possessing knives of 3 inches or longer in barracks room.
	Article 128: Spec 1: 20040220, assault R_ R_ (spouse) by grabbing forearm and tricep. 
		      Spec 2: 20050318, assault R_ R_ (spouse) by grabbing neck and arm.

Date Applicant Submitted SILT request:		20060120
	Consulted with or Waived Counsel:		
	Acknowledged Understanding Elements:	
	Acknowledged Guilt to:			Article(s) 92, 128 
		BCD/DD authorized for offense(s)	
	Acknowledged Consequences of OTH:	
	Type of Characterization Requested:	

Commanding Officer Recommendation (date):	   (20060126)
Separation Authority (date):			CG, MCRD/ERR, PARRIS ISLAND (20060131)
	Reason for Discharge directed:		
	Characterization directed:			
Date Applicant Discharged:			20060202

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)  Letter from counsel

Pertinent Regulation/Law

A.  Paragraph 6419, SEPARATION IN LIEU OF TRIAL BY COURT-MARTIAL, of the Marine Corps Separation and Retirement Manual, (MCO P1900.16F), effective 01 September 2001 until Present.

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)(b), Presumption Concerning Court-Martial Specifications.

C.  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.

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, Articles 92, Failure to obey order or regulation; and 128, Assault.

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