ex-, USMC

Current Discharge and Applicant’s Request

Application Received: 20080401
Characterization of Service Received:  
Narrative Reason for Discharge: 
Authority for Discharge:  MARCORSEPMAN 

Applicant’s Request: Characterization change to: 
		      Narrative Reason change to: 

Summary of Service

Prior Service:
Inactive: USMCR (DEP)	20020323 - 20020818  		Active:   

Period of Service Under Review:
Date of Enlistment: 20020819	Period of Enlistment:   Years   Months	Date of Discharge:  20060929
Length of Service:    Yrs    Mths  18  Dys	Education Level:  	Age at Enlistment:  	
MOS:  0151      Highest Rank:  	Fitness Reports:          AFQT:  50
Proficiency/Conduct Marks (# of occasions):	   () /  ()
Awards and Decorations (per DD 214):  Rifle  NDSM GWOTSM GWOTEM(Iraq) SSDR NUC

Period of CONF:  20051012-20051104 (23 DAYS)

NJPs:	
20030529: Article 92 (Failure to obey order or regulation), during a Health and Comfort inspection of the barracks 
                               approximately 30 empty beer cans were found, well exceeding the barracks limit; was not the legal 
                               age to consume alcohol. 
                  Awarded:   .  Susp - .

20040204: Article  86 (Unauthorized absence), failed to be at his appointed place of duty, to wit: his work section and
                               was found asleep in RM 430 Brks 14031 at 0930.
                  Article 92 (Failure to obey a lawful order), 2 specifications:
		- Spec 1: Failure to obey a lawful order,
	       - Spec 2: Violated a lawful regulation.  
                 Awarded:  .  Susp - .

20050308: Article  92 (Failure to obey a lawful order), failed to remove a lip ring.
                  Awarded:   .  Susp - .

SPCMs:	
20051012: Article  111 (Operate a vehicle while drunk), to wit: a 2003, Chevrolet s-10, while the alcohol    
                                concentration in his breath was 0.09 grams of alcohol per 210 liters.
                  Article 112a (Wrongfully use marijuana).
                  Sentence: BCD; CONF FOR 30 DAYS, Hard labor without CONF for 90 DAYS, RIR-E-1.

6105 Retention Warning Counseling: 
20050309: For violation of Article 92: In that you wrongfully disobeyed a lawful order by getting his lip pierced and
                  wearing a lip ring.

20050712: For illegal drug involvement-marijuana (THC) usage on or about 20050605 as identified by NavDrugLab
                  San Diego Message R131846Z Jun 05. 

6105 Retention Warning Counseling Continued:

20060131: For after returning from deployment in September 2004, you were assigned to be in a working party.  You
                  left organizational gear in the staging area.  Once you returned from your working party duties, you noticed
                  that his gear was missing.  IAW MCO P4400.150E, SNM did not take appropriated action by reporting the 
                  lost/missing gear in a timely manner.  In November 2005, SNM started a missing gear statement.  SNM did 
                  not offer to pay for the gear and negligence/culpability was suspected, due to waiting over a year to submit 
                  the missing gear statement.

Types of Documents Submitted/reviewed

Related to Military Service:	DD 214:  	Service and/or Medical Record:  		Other Records:  

Related to Post-Service Period:	
	Employment:			Finances:			Education/Training:	
	Health/Medical Records:		Substance Abuse:			Criminal Records:	
	Family/Personal Status: 		Community Service:  		References:  		
Additional Statements From Applicant:  		From Representation:  		From Member of Congress:  
Other Documentation (Describe):   Special Power of Attorney Letter

Pertinent Regulation/Law

A.  Paragraph 1105, DISCHARGE ADJUDGED BY SENTENCE OF COURT-MARTIAL, of the Marine Corps Separation and Retirement Manual, (MCO P1900.16F), effective 1 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 II, Para 211, Regularity of Government Affairs, Part V, Para 502, Propriety and Para 503, Equity.

C.  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 111 and 112a.

DEPARTMENT OF THE NAVY
NAVAL DISCHARGE REVIEW BOARD (NDRB)
DISCHARGE REVIEW DECISIONAL DOCUMENT

Applicant’s Issues

1. Feels he was mislead regarding suspension of his Bad Conduct Discharge
2. Wants upgrade to obtain more financial aid for college.

Decision

Date:  2008828		Location:  Washington D.C.	 Representation:  

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

Discussion

Issue 1: ()  .  The Applicant is requesting an upgrade of the characterization of his discharge from “Bad Conduct” to General (Under Honorable Conditions) because he was told if he made a short film about the dangers of drug use the “Bad Conduct” Discharge would be suspended.  He made the film but feels since his chain of command did not like him, they under rated the film.  

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.  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.  In the report of the results of trial, the Applicant’s Trial Counsel states the military judge presiding over this court martial recommended suspending the Bad Conduct discharge if the accused produced a short film about the consequences of drug use.  The stipulations were the film had to be completed during his adjudged 90 days of hard labor and then approved by the Convening Authority (CA) before the suspension would take effect.  The Applicant did produce a film.  However, the CA said it was turned in late since it was outside the required 90 day production timeline and he found “the message behind your film fell significantly short of the intent.”  Since the CA did not consider the Applicant’s intent to be serious, he would not consider clemency and the Applicant was awarded his “Bad Conduct” discharge.  The Applicant did not have a pre-trial agreement which guaranteed suspension of the “Bad Conduct” discharge.  He produces no evidence his chain of command was prejudiced regarding the film’s quality.

The Applicant’s case was considered under the pertinent standards of equity to determine if any factors in this particular case merited clemency.  After a thorough review of the available evidence, to include the Applicant’s Summary of Service, Medical and Service Record Entries, Court-Martial proceedings, Discharge Process and evidence submitted by the Applicant, the Board found clemency was not warranted and the sentence awarded the Applicant at his court-martial was appropriate for the offenses he committed. 

Issue 2:  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, specifically the paragraph concerning  regarding .

After a thorough review of the available evidence, to include the Applicant’s Summary of Service,  Record, Discharge Process and evidence submitted by the Applicant, the Board found 

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 or is referred to a court-martial 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 other medical related reasons.”  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 special 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.  The NDRB does not have the jurisdictional authority to review a discharge or dismissal resulting from a general court-martial.

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