ex-, USMC 

Current Discharge and Applicant’s Request

Application Received:  20090326
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)	20030331 - 20030922  	Active:	

Period of Service Under Review:
Date of Current Enlistment:  20030923	Age at Enlistment:  
Period of Enlistment:   Years   Months
Date of Discharge:  20060921	Highest Rank:  
Length of Service:    Year(s)    Month(s)  28  Day(s)
Education Level:  	AFQT:  36
MOS:  1341
Proficiency/Conduct Marks (# of occasions):  (NFIR)/ (NFIR)	Fitness Reports:  

Awards and Decorations (per DD 214):	Rifle   

Period of Pre-trial CONF:  20041026-20050129 (93 DAYS)
Correctional Custody Unit:  20040708-20040805 (28 DAYS)  

NJP:  
- 20040705:	Article 91 (Insubordinate conduct)
	Article 92 (Disobey a lawful order: 4 specifications)
	Article 134 (Drunk and disorderly)
		Awarded: CCU 30 DAYS    Suspended:  

- 20040921:	Article 134 (Incapacitation for performance of duties)
	Article 89 (Disrespect toward a superior commissioned officer)
	Article 86 (Absent without authority) 
		Awarded:    Suspended:  

SCM:  

SPCM:  
- 20050124:	Article 91 (Disrespectful language towards an NCO)
	Article 134 (Communicating a threat: 3 specifications)
	Article 134 (Drunk and disorderly: 1 specification)
	Article 134 (Breaking restriction) 
		Sentence: BCD CONF 120 DAYS 

CC:  

Retention Warning Counseling:  
- 20040809:	For violation of Article 91, Insubordinate conduct toward a staff noncommissioned officer; violation of Article 92, Failure to obey order or regulation, 4 specifications; Article 134, Drunk and disorderly.
  
- 20040922:	For violation of Article 86, Unauthorized absence; violation of Article 89, Disrespect toward a superior commissioned officer; violation of Article 92, Failure to obey order or regulation; violation of Article 134, Drunkenness-incapacitation for performance of duties.

Types of Documents Submitted/reviewed

Related to Military Service: 
		DD 214:		Service/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 Congress member:	
	Other Documentation:  	

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.

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

Applicant’s Issues

1.  The Applicant believes it was unfair to keep him on involuntary leave for two years.	
2.  His misconduct was due to mitigating circumstances (mental health, immaturity, family issues and alcohol).	

Decision

Date:  20091203		Location: Washington D.C.	 Representation: 

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

Discussion

The NDRB, under its responsibility to examine the propriety and equity of an Applicant’s discharge, is authorized to change the character of service and the reason for discharge if such change is warranted.  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 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. 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’s record of service included  6105 counseling warnings;  nonjudicial punishments (NJP’s) for  of the Uniform Code of Military Justice (UCMJ): Article 86 (Unauthorized absence from formation), Article 89 (Disrespect toward a superior commissioned officer, a Lieutenant Commander), Article 91 (Insubordinate conduct towards an Staff Noncommissioned Officer (SNCO) by being uncooperative and belligerent), Article 92 (Failure to obey an order or regulation – 4 specifications: all while on the Liberty Risk Program, wore civilian attire, wore civilian attire to the gym, consumed alcohol and failed to sign out), Article 134 (Drunk and disorderly) and Article 134 (Drunkenness -incapacitation for performance of duties with a Blood Alcohol Content (BAC) of .126); and  Special Court-Martial (SPCM) for  of the UCMJ: Article 91 (Disrespectful language towards a NCO), Article 134 (Drunk and disorderly), Article 134 (Breaking restriction) and Article 134 (Communicating a threat toward other Marines: 3 specifications).  Based on the offense(s) committed by the Applicant,  command court-martialed him and separated him from the Marine Corps.  The Applicant was represented by qualified counsel at his SPCM.  He was found guilty, sentenced and placed on appellate leave awaiting approval of his bad conduct discharge (BCD). 

:  (Decisional) ()  .  The Applicant contends it was unfair to keep him on involuntary leave for two years and should have been discharged within 180 days of the appeal decision.  The Applicant’s SPCM occurred on 24 January 2005 and he was subsequently assigned, at his request on 3 February 2005, to voluntary appellate leave.  Upon the convening authorities approval of his punitive discharge he was notified in writing on 17 January 2006 that his voluntary leave status would be changed to involuntary appellate leave status.  The Applicant case was then reviewed by the appellate courts.  On 25 August 2006, the appellate courts supported the court-martial sentence and the BCD was executed as discharged.  The Applicant was discharged from the Marine Corps on 4 October 2006.  The NDRB determined that the Applicant’s issue was without merit as the appellate process was conducted properly and in accordance with standard practices.  Clemency denied.

Issue 2:  (Decisional) ()  .  The Applicant contends his misconduct was due to mitigating circumstances such as mental health, immaturity, family issues and alcohol.  Although the Applicant may believe that family issues or his immaturity attributed to mistakes at the time, the NDRB determined that these issues were not mitigating factors in his misconduct.  As for the alcohol being a mitigating factor, the command sent the Applicant to IMPACT class from 28 June to 2 July 2004, following an alcohol-related incident that led to his first NJP.  The Applicant had two more alcohol-related incidents; one in September 2004, which contributed to his second NJP and one in October 2004, which resulted in pre-trial confinement until his SPCM.  Again, the NDRB determined that the command attempted to help the Applicant; but his irresponsibility, vice alcohol use, ultimately led to his misconduct.  Finally, the Applicant contends his mental health issues were mitigating factors and should be considered.  The Applicant was first seen regarding mental health issues on 13 October 2004, after his two NJPs.  At this point, the Applicant revealed that he had been diagnosed at the age of 15 to 18 as bi-polar and was given many antidepressants.  The NDRB noted, after reviewing the Applicant’s enlistment documents that he failed to disclose this required and pertinent information upon enlistment.  For the Applicant’s edification, had his command opted to pursue a discharge due to mental health reasons, separations for misconduct take precedence over potential separations for other reasons—to include medical issues.  The NDRB opined that clemency is not warranted.  Relief denied.    

Summary:  After a thorough review of the available evidence, to include the Applicant’s summary of service, medical and   record entries, discharge process and evidence submitted by the Applicant, the Board found clemency was not warranted.  Therefore, the awarded characterization of service shall   and the narrative reason for separation shall remain .  The Applicant remains eligible for a personal appearance hearing for a period of fifteen years from the date of  discharge.  The Applicant is directed to the Addendum, specifically the paragraphs titled Additional Reviews, and Post-Service Conduct.

ADDENDUM:  Information for the Applicant

Complaint Procedures:  If you believe 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:  After a document review has been conducted, former members are eligible for a personal appearance hearing, provided the application is received at the NDRB within 15 years of the Applicant’s 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.  There are veterans organizations such as the American Legion and the Association of Service Disable Veterans that are willing to provide guidance to former service members in their efforts to obtain a discharge upgrade.  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 U.S. Department of Veterans Affairs (VA) determines eligibility for post-service benefits, not the NDRB.  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 NDRB has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities.  Regulations limit the NDRB’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 BCNR can make changes to reenlistment codes.  Additionally, the NDRB 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 is processed subsequently for an administrative involuntary separation or is referred to a court martial for misconduct, the disability evaluation is suspended 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 BCNR can grant this type of narrative reason change.

Automatic Upgrades - There is no law or regulation that provides for an unfavorable discharge to be upgraded based solely on the passage of time or good conduct subsequent to leaving naval service.  

Post-Service Conduct:  The NDRB is authorized to consider post-service factors in the recharacterization of a discharge.  Outstanding post-service conduct, 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, is considered during Board reviews.  Documentation to support a post-service conduct upgrade includes, but is not limited to: a verifiable continuous employment record; marriage and children’s birth certificates (if applicable); character witness statements; documentation of community or church service; certification of non-involvement with civil authorities; evidence of financial stability or letters of good standing from banks, credit card companies, or other financial institutions; attendance at or completion of higher education (official transcripts); and documentation of a drug-free lifestyle.   The Applicant is advised that 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 accomplishments help demonstrate  in-service misconduct was an aberration and not indicative of the member’s overall character.

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 NDRB 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