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:  or UNDER OTHER THAN HONORABLE CONDITIONS
	Narrative Reason change to: 

Summary of Service

Prior Service:
Inactive:	USMCR (DEP)	20010131 - 20010909  	Active:	

Period of Service Under Review:
Date of Current Enlistment:  20010910	Age at Enlistment:  
Period of Enlistment:   Years   Months
Date of Discharge:  20070710	Highest Rank:  
Length of Service:    Year(s)    Month(s)  29  Day(s)
Education Level:  	AFQT:  49
MOS:  0151
Proficiency/Conduct Marks (# of occasions):   () /  ()	Fitness Reports:  

Awards and Decorations (per DD 214):	Rifle    LoA CoC (Unit award)

Lost time per DD214 (302) 20040412-20050213

NJP:  

- 20030620:	Article  (Failed to obey a lawful order, riding a motorcycle without safety equipment on 20030614) 
	Awarded:     Suspended:   

- 20040205:	Article  (Failed to obey order, follow liberty limits of 300 miles when he traveled to Odessa, TX (1054 miles))  
	Article  (Absent from unit 0730, 20031201 to 0100, 20031203)
	Article 128 (Struck AEAA with fist at barrack at 2230, 20040124) 
	Awarded:     Suspended:  

SCM:  

SPCM:  

- 20040625:	Article 112a (Wrongful use of marijuana)
	Article 86 (UA), 2 specifications
	Specification 1: Go from his duty section with intent to abandon 20040410
	Specification 2: Failed to go as prescribed to his appointed place of duty at 20040412
	Article 121 (Steal an NCO sword, property of the U.S. Government, of a value less than $500.00)   
	Sentence: CONF 11 months 

CC:  

Retention Warning Counseling:  

- 20030226:	For unauthorized absence from field day formation on 20030224   

- 20030613:	For failing to obey lawful order by riding a motorcycle without the required safety equipment  

- 20030613:	For failing to obey a lawful order and regulation by mishandling U.S. mail, sleeping while on duty in the mailroom, and allowing unauthorized personnel access to the mailroom unsupervised  

- 20040129:	For misconduct Article 92, failed to follow 3D MAW Liberty limits of 300 miles when he traveled to Odessa, TX (1054 miles); Article 86, absent himself from his unit from 20031201 at 0730, to 0100, 20031202; and Article 128, struck AEAA with fist at barracks 2427, Camp Pendleton at 2230, 20040124       

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 P1900.16F), 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.	Nondecisional issues: The Applicant seeks an upgrade in his characterization of discharge and re-enlistment code (RE-Code) in order to enlist in the Army or Air Force as a heavy equipment operator.  

2.	Decisional issues: (Clemency/Equity) Applicant contends that he was young and immature and this was a mitigating factor in his misconduct; he expresses remorse for his actions and seeks clemency in upgrading his discharge characterization of service to General (Under Honorable Conditions) or Under Other Than Honorable Conditions.   

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 service record reflects a pre-service waiver for minor criminal involvement and a pre-service waiver for drug use – specifically for marijuana use of 18 times or greater.  The Applicant acknowledged his complete understanding of the Marine Corps Policy Concerning the Illegal Use of Drugs, in writing, on 30 January 2001.
      
The Applicant’s record of service was marred with four 6105 retention-counseling warnings and two non-judicial punishments for violations of the Uniform Code of Military Justice (UCMJ): Article 86 (Absence without leave; specifically unauthorized absence from his unit 20031201-20031203), Article 92 (Failure to obey order or regulation, 2 specifications), and Article 128 (Assault).  

The Applicant was referred to trial by Special Court-Martial for violations of the UCMJ, specifically, violation of: 
•	Article 86 (Absent without leave; 20010410 - absented himself from his appointed place of duty without authority; 20040412 - failed to go at time prescribed to his appointed place of duty); 
•	Article 112a (Wrongful use, possession, etc. of a controlled substance - Marijuana, on or about 26 March 2004); and 
•	Article 121 (Larceny of Military Property of a value of $500.00 or less).  

The Applicant had no pre-trial agreement in place for consideration by the Special Court-Martial military judge.  The Applicant elected to plead guilty to the charge of violation of Article 112a before a military judge alone and further elected trial by members for the remaining charges preferred against him (Articles 86 and 121).  He was found guilty in trial by judge alone of the violation of Article 112a (Marijuana) and in the subsequent trial by jury he was found guilty of the remaining charges.  On 25 June 2004, having been found guilty at trial by Special Court-Martial, the Applicant was adjudged a Bad Conduct Discharge, confinement for 11 months, ordered a forfeiture of pay, and reduced in rank to Private (E-1).  The Convening Authority ordered the adjudged punishment executed.  The Applicant subsequently was confined for 238 days, having been credited 74 days of pre-trial confinement to his adjudged sentence.  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.  In addition to the Applicant’s statement on the DD Form 293, he provided post-discharge certification of training as a heavy equipment operator and letters of recommendation from his two previous employers attesting to his character and work ethic.

:  (Nondecisional) - The Applicant seeks an upgrade in his characterization of discharge and change to his RE-Code in order to enlist in the Army or Air Force as a heavy equipment operator.  The NDRB has no jurisdiction over reenlistment, reentry, or reinstatement into the Navy, Marine Corps, or any other branch of the Armed Forces, and is not authorized to change a reenlistment code.  Additionally, the NDRB has no authority to upgrade a discharge for the sole purpose of enhancing reenlistment opportunities; the NDRB is limited to examining issues in regards to matters of the propriety and equity of a discharge action.  An unfavorable RE-Code is, in itself, not a bar to reenlistment.  A request for a waiver may be submitted during the processing of a formal application for reenlistment through a recruiter.  Only the Board for Correction of Naval Records (BCNR) can make changes to reenlistment codes.  The Applicant may petition the Board for Correction of Naval Records (BCNR) using Form DD-149.  When requesting this change, the Applicant should provide as much documentation regarding his contention as possible.  The BCNR’s address is: Board for Correction of Naval Records (BCNR), 2 Navy Annex, Washington, DC 20370-5100.  Further information may be found online at http://www.donhq.navy.mil/bcnr/bcnr.htm.  The NDRB is not authorized to change the reentry code as requested by the Applicant nor upgrade the characterization of service at discharge solely to facilitate re-enlistment; as such, no relief warranted.    

Issue 2: (Clemency/Equity) RELIEF NOT WARRANTED.  The Applicant contends that he was young and immature and this was a mitigating factor in his misconduct; he expresses remorse for his actions and seeks clemency in upgrading his discharge characterization of service to General (Under Honorable Conditions) or Under Other Than Honorable Conditions.   

In response to the Applicant’s request for clemency, relevant and material facts stated in a trial by court-martial 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 - 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 successfully completed Marine Corps Recruit Training, Marine Combat Training, and his military occupational specialty (MOS) school.  Moreover, the Applicant was assigned to his Fleet command for approximately two years prior to the command preferring charges against him for trial by court-martial.  As such, the NDRB determined that the Applicant's youth, age, or experience were not mitigating factors in his misconduct.      

The NDRB conducted a thorough review of the available evidence, to include the Applicant’s Summary of Service, Service Record Entries, the verbatim transcript of the Special Court-Martial proceeding, and the overall discharge process.  Despite a service member’s prior record of service, certain serious offenses, even though isolated, warrant separation from the Naval service in order to maintain good order and discipline.  Violation of Article 112a (Drugs) and Article 121 (Larceny) are considered serious offenses, punishable by a Bad Conduct Discharge and confinement if adjudicated and awarded as part of a sentence by a Special or General Court-Martial.  The Applicant was counseled in regards to his misconduct throughout his period of service by his Commanding Officer, was administratively punished at non-judicial punishment, and was afforded an opportunity to correct his errors.  The Applicant failed to correct his deficiencies in conduct and chose to continue to deliberately and consciously engage in willful misconduct in violation of the Uniform Code of Military Justice.  Based on the charges and specifications contained in the record of trial and the unique circumstances to this case, referral to trial by Special Court-Martial was warranted.

Based on the charges and specifications contained in the Special Court Martial, coupled with the Applicant’s previous misconduct, the NDRB determined that the Applicant had committed acts that constituted a significant and dramatic departure from the conduct expected from a service member, which brought significant discredit upon the United States Military and the Naval services.  The reason for discharge - convicted by Special Court-Martial - is appropriate.  Furthermore, based on this review, and the facts and circumstances unique to this case, the Board determined that the sentence awarded the Applicant at his court-martial was equitable and that relief on the basis of clemency was not warranted.  As such, by a vote of 5-0, the NDRB determined that the characterization of service shall remain “Bad Conduct Discharge” and the Narrative Reason for Separation shall remain “Court-Martial.”  Relief denied.

Summary:  After a thorough review of the available evidence, to include the Applicant’s summary of service,  record entries, and the verbatim transcript of trial by Special Court-Martial, the Board found   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 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