ex-, USMC

Current Discharge and Applicant’s Request
Application Received:  20091027
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:	NONE			Active:	

Period of Service Under Review:
Date of Current Enlistment:  19971120	Age at Enlistment:  
Period of Enlistment:   Years   Months
Date of Discharge:  20000831	Highest Rank:  
Length of Service:    Year(s)    Month(s)  12  Day(s)
Education Level:  	AFQT:  63
MOS:  0352
Proficiency/Conduct Marks (# of occasions):   () /  ()	Fitness Reports:  
Awards and Decorations (per DD 214):	Rifle 

NJP:  	SCM:  

SPCM:  

- 19990324:	Article  (UA), 2 specifications
	Specification 1: UA 19981015 – 19981026 (12 days)
	Specification 2: UA 19981102 – 19990124 (84 days)
	Sentence: , , RIR E-1, CONF FOR 60 DAYS (19990124-19990323 (59 days)) 

CC:  	Retention Warning Counseling:  

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:		Rehabilitation/Treatment:		Criminal Records:	
	Personal Documentation:		Community Service:		References:	
	Department of VA letter:		Other Documentation:	
		Additional Statements:
	From Applicant:		From/To Representation:		From/To Congress member:	

Pertinent Regulation/Law
A.  Paragraph 1105, DISCHARGE ADJUDGED BY SENTENCE OF COURT-MARTIAL, of the Marine Corps Separation and Retirement Manual, (MCO P1900.16E), effective 18 August 1995 until 31 August 2001.

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 contends that his misconduct was the result of personal family hardship and denial of leave by his command; as such, he seeks clemency through an upgrade of his characterization of service upon discharge to a General (Under Honorable Conditions).  Furthermore, the Applicant contends that he requested - and was denied - a hardship discharge.  The Applicant seeks no change to his narrative reason for separation.    

Decision

Date:  20101220		Location: Washington D.C.	 Representation: 

By a vote of  the Characterization shall  .
By a vote of  the Narrative Reason shall  .

Discussion

In reviewing discharges, the NDRB 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.  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 reflects no 6105 retention-counseling warnings or non-judicial punishment for violation of the Uniform Code of Military Justice (UCMJ).  However, the Applicant’s record of service is marred with a trial by Special Court-Martial for violation of Article 86 (2 specifications):
•	Unauthorized Absence from his unit in excess of 3 days, terminated by surrender to his unit                                       19981015 - 19981026 (12 days)
•	Unauthorized Absence from his unit in excess of 30 days, terminated by surrender to his unit                              19981102 - 19990124 (84 days)).

The Applicant was represented by counsel during his trial by Special Court-Martial.  The Applicant exercised his right to request a trial by military judge alone and further elected to plead guilty to the charges as specified.  He was found guilty of the charges as specified in trial by judge alone.  There was no pre-trial agreement in place for consideration by the Military Judge.  He adjudged the Applicant a Bad Conduct Discharge, confinement for 60 days, forfeiture of pay, and reduction in rank to Private (E-1).  The Applicant served no confinement on his sentence after receiving credit for 59 days of pre-trial confinement already served.  The case was reviewed and affirmed by the U.S. Navy–Marine Corps Court of Criminal Appeals.  Additionally, the Naval Clemency and Parole Board reviewed the case and determined that no clemency was warranted.  

Besides his DD Form 293, the Applicant provided a personal statement and a statement from his mother regarding his discharge for consideration by the NDRB.   

Issue 1: (Clemency/Equity) PARTIAL RELIEF WARRANTED.  The Applicant contends that his misconduct was the result of personal family hardship and denial of leave by his command; as such, he seeks clemency through an upgrade of his characterization of service upon discharge to a General (Under Honorable Conditions).  Furthermore, the Applicant contends that he requested - and was denied - a hardship discharge.  The Applicant seeks no change to his narrative reason for separation.    

A Marine may request discharge by reason of hardship if the hardship is not temporary, the Marine has made every effort to remedy the situation, separation will eliminate or materially alleviate the condition, and that there is no other means of alleviation reasonably available.  If the member’s request is based on the financial difficulties of a Marine’s family member, the Marine must provide statements of both income and expenses and assets and liabilities of those family members.  The Government enjoys a presumption of regularity in the conduct of its affairs.  The Applicant bears the burden of overcoming this presumption through the presentation of substantial and credible evidence to support his issue.  The Applicant’s service record contains neither a request for hardship discharge nor a request for permissive temporary additional duty due to hardship.  The Applicant did not provide any documentation to the NDRB to demonstrate he properly requested discharge on the basis of hardship or that he met the criteria for discharge by reason of hardship.  However, even if the Applicant could show he met the criteria for discharge by reason of hardship, it would neither amount to a justification nor a defense for the Applicant’s misconduct.  Additionally, the Applicant presented no documentation that he availed himself of the many services available to a Marine to assist with family hardship nor did he specify in his sworn statement during the trial by court-martial that this was a consideration.  The Applicant’s sworn testimony to the Military Judge was that he was fully aware he could request mast to the Commanding Officer regarding the denial of his leave, that he chose not to exercise that right, and that he was primarily home sick.  There was no critical family emergency that required his immediate presence; the Applicant testified that he just wanted to be home with his ailing mother.

The Applicant’s record of service reflected no misconduct before the periods of unauthorized absence.  The Applicant surrendered himself back to military authorities.  He accepted the consequences for his misconduct, requested trial by judge alone, and pled guilty to the charges as specified.  Given the unique circumstances of the case, coupled with the nature of the misconduct, the NDRB determined by a vote of 5-0 that the punishment was inequitably harsh and that some form of clemency was warranted.  Therefore, after reviewing the Applicant’s issues, supporting documents and the evidence of record, the NDRB discerned inequity in the characterization of service and determined that partial relief was warranted. 

Summary: After a thorough review of the available evidence, to include the Applicant’s summary of service,  record entries, the verbatim record of trial, and the discharge process, the Board found partial   Therefore, the awarded characterization of service shall  ; however, 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 Disabled American 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 their 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