ex-, USMC

Current Discharge and Applicant’s Request

Application Received:  20080701
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)	20010601 - 20010722  		Active:   

Period of Service Under Review:
Date of Enlistment: 20010723	Period of Enlistment:   Years   Months	Date of Discharge:  20060628
Length of Service:    Yrs    Mths  29  Dys	Education Level:  	Age at Enlistment:  	AFQT:  52
MOS:  1345	Highest Rank:  	Fitness Reports:  
Proficiency/Conduct Marks (# of occasions):		 () /  ()
Awards and Decorations (per DD 214):  Rifle  MCGCM GWOTSM GWOTEM (Iraq) SSDR NDSM NUC PUCN

Periods of CONF/Pre-trial CONF:  20041006-20041219 (75 DAYS), CONF:  20041220-20050113 (24 DAYS). 

SPCMs:	
20041220: Article 92 (Failed to obey a lawful order),
                  Article 128 (Assault) (3 specifications).
                  Sentence: RIR E-1 CONF FOR 10 MONTHS BCD.

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:  

	- Interest from Pennsylvania Congressmen Jason A. 

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 P1900.16F), 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, Articles 92 and 128.

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

Applicant’s Issues

1.  Military had no jurisdiction; offenses occurred off-base and off-duty.
2.  Inadequate counsel at trial.
3.  Limited use of right arm.
4.  Applicant pending Physical Evaluation Board (PEB).
5.  Wounds suffered in Iraq.
6.  Post-traumatic stress disorder (PTSD).
7.  Clemency.

Decision

Date:  20080904		Location:  Washington D.C.	 Representation:  

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

Discussion

In response to the Applicant’s clemency request, relevant and material facts stated in a special 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 Applicant identified six issues in his DD293 application which are addressed individually below.

Issue 1:  The Applicant contends his offense should have been tried in a civilian court since the incidents occurred off-base and off-duty.  For the information of the Applicant, active duty members of military service are subject to the Uniform Code of Military Justice (UCMJ) regardless of where violations occur or when they occur.  The UCMJ applies to active duty service members 24 hours a day, in all places and at all times.  

Issue 2:  The Applicant contends he received inadequate counsel at trial.  The Applicant has already appealed his conviction on these grounds.  This appeal was denied by the Navy-Marine Corps Court of Criminal Appeals on 29 March 2006.

Issues 3-4: The Applicant contends his discharge should be upgraded due to his limited use of his right arm and his pending a PEB.  The NDRB noted the Applicant underwent surgery to remove a ganglion cyst from his right wrist on 8 January 2004 and surgery to relieve cubital tunnel syndrome on 19 July 2004.  The NDRB also noted the Applicant was being processed by a PEB beginning in September 2004.  The NDRB determined these injuries and PEB are insufficient grounds to grant clemency for an assault which occurred in June 2004 which involved the Applicant using his right arm.  Additionally, the NDRB directs the attention of the Applicant to the ADDENDUM, specifically the paragraph concerning Medical Conditions and Misconduct.  Service member pending review by a PEB who are processed for either a punitive or administrative discharge have their PEB case suspended and then filed in there terminated health record.  

Issue 5:  (Clemency) RELIEF NOT WARRANTED.  The Applicant contends his discharge should be upgraded because he has been wounded in action in Iraq.  The Board applauds the Applicant’s voluntary service in a combat zone, but does not agree an upgrade based on clemency should be granted due to the wound suffered by the Applicant to his lower right earlobe.  

Issue 6:  (Clemency) RELIEF NOT WARRANTED.  The Applicant contends his discharge should be upgraded because he suffers from PTSD.  The record of evidence shows the Applicant was diagnosed with moderate PTSD on 19 September 2004.  The diagnosis also includes Major Depression and notes a history of Attention Deficit/Hyperactivity Disorder.  The diagnosis, however, does not state that the Applicant was not responsible for his actions.  The record of evidence includes a record of court-ordered treatment for anger management between January and April 1999.  After careful consideration of the Applicant’s 

moderate PTSD diagnosis and his history of anger management problems, the Board determined the discharge awarded at Court-Martial was appropriate for the offense he committed and an upgrade based on clemency was not warranted. 

Issue 7:  (Clemency)  RELIEF NOT WARRANTED.  In determining whether clemency is appropriate, the NDRB is authorized to consider 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.  Examples of verifiable documentation that should be provided for consideration by the Board for post service upgrades include, but is not limited to: evidence of continuing educational pursuits; continuous employment records; documentation of community service or church involvement; certification of non-involvement with civil authorities; financial stability or evidence of good standing with credit card companies or other financial institutions; and credible evidence of a substance-free lifestyle.  However, the Applicant is advised completion of these items alone does not guarantee the upgrade of an unfavorable discharge as each discharge is reviewed by the Board on a case by case basis to determine if post service conduct warrants clemency.  As evidence of his post-service conduct, the Applicant submitted a letter from his parents, his fiancé and two letter from past employers.  Without more substantial evidence, the Applicant’s statements and supporting documents do not provide adequate basis for the Board to render a judgment and thus award clemency to the Applicant.   

After a thorough review of the available evidence, to include the Applicant’s Summary of Service, Service Record Entries, 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. 

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