ex-, USMC

Current Discharge and Applicant’s Request

Application Received:  20080716
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) 19960329 - 19960915  		Active:        19960916-20020128  HON

Period of Service Under Review:
Date of Enlistment:  20020129	Period of Enlistment:   Years   Months	Date of Discharge:  20070822
Length of Service:    Years     Months   25  Days	Education Level:  	Age at Enlistment:  
AFQT:  52	MOS:  5811	Highest Rank:  	Fitness Reports:  
Proficiency/Conduct Marks (# of occasions):	  NA
Awards and Decorations (per DD 214):  Rifle  Pistol      

Periods of UA/CONF:  

NJP:  
- 20020605:  Article 92 (Wrongfully violating a military protection order)
                     Article 134 (Inappropriate contact)
                     Awarded:      Suspended:  

SCM:  
- 20021025:  Article 90 (Willfully disobeyed a lawful order from a superior commissioned officer)
                     Sentence:    

SPCM:  
- 20030611:  Article 91 (Disrespect to a noncommissioned officer)
                     Article 92 (Violation of a lawful general order)
                     Sentence:  BCD

CC:       

6105 Counseling:  1
- 20020605:  For failure to obey a lawful general order by wrongfully violating a military protection order

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):  

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

Applicant’s Issues

1.  Employment opportunities.
2.  Service benefits.
3.  Punishment too severe.
4.  Record of service.
5.  Post-service conduct.

Decision

Date:  20081113		Location:  Washington D.C.	 Representation:  

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

Discussion

:   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 paragraphs concerning  and , regarding .

:  ()  .  The Applicant contends his is entitled to clemency due to the severity of the punishment, his record of service and his post-service conduct.  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 which reduces the severity of the punishment imposed.  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.  The Applicant’s record of service is marred by one NJP, one SCM, and one SPCM for violations of the Uniform Code of Military Justice (UCMJ):  Article 90 (Willfully disobeyed a lawful order from a superior commissioned officer), Article 91 (Disrespect to a noncommissioned officer), Article 92 (Wrongfully violating a military protection order), Article 92 (Violation of a lawful general order), and Article 134 (Inappropriate contact).  As a result of the Applicant’s misconduct he was awarded a “Bad Conduct Discharge” by a Special Court-Martial.    

The Applicant’s case was considered by the NDRB under the pertinent standards of equity to determine if any factors in this particular case merited clemency.  The reason for discharge as convicted by a special court-martial was appropriate.  However, the NDRB found extenuating factors offset the seriousness of the offenses for which the discharge was awarded.  The Applicant was awarded a BCD by the SPCM for infractions of Articles which are considered “serious offenses.”  In reviewing this particular case it was determined while the offenses were serious, they did not warrant a “Bad Conduct Discharge”.   The SPCM was solely based on an incident where the Applicant was told to place his cover on his head while driving through a base gate; the Applicant did so but with what one can only surmise was a disrespectful manner.  While disrespect in any manner can not be tolerated in the service, the nature and basis for the charge was so minor a “Bad Conduct Discharge” was deemed as inequitable for such a small offense.  Based on similar cases reviewed by the NDRB and the awarded discharge characterization those cases received for offenses of greater, and lesser, severity, the NDRB determined clemency was warranted in the Applicant’s case.  However, the record of misconduct prior to his SPCM, documented by the NJP and SCM, limited the NDRB’s clemency to upgrading the characterization of service from “Bad Conduct” to “Under Other Than Honorable” conditions.  The Board determined based on this overall misconduct an upgrade to “General (Under Honorable Conditions)” would be inappropriate.

After a thorough review of the available evidence, to include the Applicant’s Summary of Service, Service and Medical Record Entries, Discharge Process and evidence submitted by the Applicant, the Board found the sentence awarded the 
Applicant at his court-martial was appropriate for the offenses he committed, but determined partial clemency was warranted. 

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 IV, Para 403m(7)(a), 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, Article 91.

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 or for any basis wherein an Other Than Honorable Discharge is authorized, 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