ex-, USMC

Current Discharge and Applicant’s Request

Application Received:  20100326
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:			Active:	    	19860821 - 19861217 (HON)
	USA (NG)	19861218 - 19891015  
                USMCR (DEP)	19900330 - 19900501  	Active:	 	19900502 - 19940418 (HON)
					19940419 - 19970509 (HON)
					19970510 - 20011217 (HON)
Period of Service Under Review:
Date of Current Enlistment:  20011218	Age at Current Enlistment: 35    
Period of Enlistment:   Years   Months
Date of Discharge:  20070814	Highest Rank:  
Length of Service:    Year(s)    Month(s)  27  Day(s)
Education Level:   (10)	AFQT:  56
MOS:  0151/0193
Proficiency/Conduct Marks (# of occasions):  Not applicable	       Fitness Reports:  

Awards and Decorations (per DD 214):  Rifle SS, Pistol MM, , (x2), JSAM,  (x4),  (x2), ,  (x2), , CertCom (x3), Cert App, LoA (x3), Army Service Ribbon

Periods of UA/CONF:  

NJP:  

- 20050524:	Article 93, 2 specifications (each specification occurring on or about Nov 2004, two separate persons)
	Specification 1: (Making Lewd and Sexual remarks to a subordinate female Marine as the SNCOIC)  
	Specification 2: (Making Lewd and Sexual remarks to a subordinate female Marine as the SNCOIC)  
	Awarded:  (40/40),            Suspended:   For 6 months, unless sooner vacated

SCM:  	

SPCM:  	

- 20050401:	Article  (Wrongful use, possession, etc of a controlled substance)
	   Specification 1: (On or about 14 Aug 2004, at or near Beaufort SC, did wrongfully use marijuana)
	Article 107 (False Official Statements)  
	Specification 1: (On or about 16 September 2004, did, with intent to deceive, make an official statement to investigators, which statement was false and was known to be false by the Applicant at the time) 
	Sentence:  , ,  to the limits of MCAS Beaufort, SC for 30 days.

CC:  
	
Retention Warning Counseling:      19970513:  For confirmed Level IV Spousal Abuse and civilian and military police involvement in domestic disturbances.

Types of Documents Submitted/reviewed

Related to Military Service:
	DD 214:		Service/Medical Record:		Other Records:	
                                                                                                                                        (Verbatim Record of Trial at Special  
                                                                                                                                          Court Martial, volume I, II, and III)
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 reinstatement into the Marine Corps and retirement, with restoration of his previous rank, promotion to his selected grade, and all back pay due.  

2.	Decisional issues:  (1) The Applicant contends that he was court-martialed erroneously.  (2) The Applicant contends that after serving 16 years of active duty service, his record does not warrant a Bad Conduct Discharge.  (3) The Applicant contends that he was treated unfairly and that his Court-Martial was not equitable, and further, the Government counsel violated his civil rights.

Decision

Date:  20110429		Location: Washington D.C.	 Representation: None

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 indicates he entered military service at age 23 after a period of service in the United States Army National Guard.  The Applicant completed three prior periods of continuous honorable active duty service from May 1990 until December 2001.  He reenlisted in December 2001 under a 4-year reenlistment contract with a twelve month extension as a USMC Administration Chief.  The Applicant acknowledged his complete understanding of the Marine Corps Policy Concerning Illegal Use of Drugs, in writing and witnessed, on 30 March 1990.  The highest rank achieved by the Applicant during his enlistment was E-6/Staff Sergeant.      

The Applicant’s record of service reflects one 6105 retention-counseling warning.  During the Applicant’s current enlistment period, his record of service reflects one non-judicial punishment for violation of the Uniform Code of Military Justice (UCMJ); Article 93 (Cruelty, maltreatment of subordinates; specifically, two specifications of making lewd and sexual remarks to subordinate female Marines as their Staff Noncommissioned Officer in Charge).  Additionally, the Applicant’s service record contains a punitive punishment as adjudged by a Special Court-Martial dated 01 April 2005.  The Applicant was subject to Special Court-Martial for violation of Article 107 (False official statement) and Article 112(a) (Wrongful use, possession, etc of a controlled substance).  Qualified legal defense counsel represented him during his trial by Special Court-Martial.

There was no pre-trial agreement in place in regards to the Special Court-Martial, and the Applicant served no time in pre-trial confinement.  The Applicant elected to be tried by a court-martial composed of members with enlisted representation and entered pleas of not guilty to the referred charges and specifications.  The members of the Court-Martial found the Applicant guilty of both charges; the sentence adjudged was to be reduced to the pay grade E-1, restricted to the limits of the Marine Corps Air Station for a period of 30 days, and to be discharged from the service with a Bad Conduct Discharge.  The case was submitted for review - with assignment of error - to the U.S. Navy–Marine Corps Court of Criminal Appeals; it was reviewed and the findings were affirmed on 17 April 2007.  The Applicant was notified of the Criminal Appeals Court decision regarding his review and the specified assignments of error.  The Applicant did not exercise his right to petition the Court of Appeals of the Armed Forces.  As such, the Navy-Marine Corps Appellate Leave Activity subsequently ordered the Bad Conduct Discharge executed on 19 June 2007.  Besides his DD Form 293, the Applicant provided a copy of his Department of Veterans Affairs determination of entitlements and a copy of his request for assistance submitted to his Congressional Representative.  

Nondecisional issue - The Applicant seeks reinstatement into the Marine Corps and retirement, with restoration of his previous rank, promotion to his selected grade, and all back pay monies due.   either  for which the NDRB cannot form the basis of relief requested by the Applicant, or  the NDRB does not have the authority to grant the relief for which the Applicant petitioned.  The Applicant is directed to the Addendum regarding Issues Concerning Bad-Conduct Discharges (BCD).  Because relevant and material facts stated in a court-martial are presumed by the NDRB to be established facts, issues relating to the Applicant’s innocence of the charges for which he was found guilty cannot form a basis for relief.  

The Applicant was advised of his rights of appeal and he acknowledged those rights, in writing; specifically, he acknowledged his right to seek further review of his court-martial conviction before the Navy-Marine Corps Court of Criminal Appeals, the Court of Appeals for the Armed Forces and, ultimately, the U.S. Supreme Court.  As regulations limit the NDRB’s review solely to a determination of clemency under the pertinent standards of equity, this issue does not serve to provide a foundation upon which the Board can grant relief.

Decisional Issues:  (Clemency) - RELIEF NOT WARRANTED.  (1) The Applicant contends that he was court-martialed erroneously and the Government counsel violated his civil rights.  (2) The Applicant contends that after serving 16 years of active duty service, his record does not warrant a Bad Conduct Discharge.  (3) The Applicant contends that he was treated unfairly and that his Court-Martial was not equitable.    

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.  Besides the Applicant’s statement on the DD Form 293 and his affidavit of non-involvement with civil legal authorities, the Applicant failed to provide any documentation or evidence on his behalf regarding any extenuating or mitigating circumstances surrounding his discharge.  The NDRB conducted a thorough review of the Applicant’s discharge under the pertinent standards of equity to determine if any factors in this particular case merited clemency.  

Issue 1 - The Applicant contends that he was court-martialed erroneously and the Government counsel violated his civil rights.  The NDRB reviewed the Verbatim Record of Trial by Special Court-Martial and all attendant appeals.  The Applicant was identified as having violated Article 112(a) through positive confirmation of marijuana metabolites in his urine sample following a command-directed unit sweep urinalysis test.  The Applicant was properly referred to trial by court-martial by the convening authority; he was represented by counsel and elected to exercise his right to a trial by court-martial composed of a panel of enlisted and officer members.  Based on the evidence presented, the Applicant was convicted, contrary to his pleas.  The Applicant appealed his case to the Navy-Marine Corps Court of Criminal Appeals, alleging three assignments of error during his trial.  A three-judge panel examined the record of trial, the Applicant’s assignments of error, and the government’s responses; they concluded that the findings and the sentence were correct in law and fact and that no errors materially prejudicial to the substantial rights of the Applicant were committed.  The Applicant and his counsel were properly notified of the Court’s decision; they chose not to exercise their right to further appeal to the Court of Appeals of the Armed Forces.  The NDRB determined that the Applicant was not erroneously court-martialed and that this issue is without merit.  Relief denied.           

Issue 2 - The Applicant contends that after serving 16 years of active duty service, his record does not warrant a Bad Conduct Discharge.  Despite a servicemember’s prior record of service, certain serious offenses warrant consideration for separation from the service in order to maintain good order and discipline.  Violation of Article 112(a) is one such offense, requiring, at a minimum, processing for administrative separation regardless of grade or time in service and usually results in an unfavorable characterization of service at discharge.  However, a punitive discharge and possible confinement - if adjudicated and awarded as part of a sentence by a special or general court-martial - is also warranted.  In this specific case, the Applicant was a Staff Noncommissioned Officer (SNCO).  As such, the Applicant was afforded special trust and confidence as a leader of Marines.  Moreover, he was a Staff Noncommissioned Officer in Charge (SNCOIC), vested with the authority and responsibility of leading, teaching, training, and mentoring young Marines.  Given these unique circumstances, the command opted to pursue punitive, vice administrative, action in order to maintain good order, discipline, accountability, and responsibility.  

Nothing in the evidence of record indicates that the Applicant’s punitive discharge was in any way inconsistent with the standards of discipline of the United States Marine Corps.  The evidence of record documents that the Applicant committed a serious offense, that separation from the Naval Service was appropriate, and that a Bad Conduct Discharge, as adjudged, was warranted.  The NDRB determined that the Applicant’s misconduct violated the special trust and confidence vested in him as a SNCO, severely undermining the good order and discipline of the command and of the service.  Given the Applicant’s leadership position, the special trust and confidence vested in him as a SNCO, and the fact that he was adjudged and sentenced by a panel of enlisted and officer members, the NDRB determined that the punitive discharge, as adjudged, was warranted and that clemency is not warranted.  Relief denied.

Issue 3 - The Applicant contends that he was treated unfairly and that his Court-Martial was not equitable.  The Applicant completed his first three enlistments with Honorable characterizations of service; these periods of Honorable service are correctly reflected on the Applicant’s DD Form 214.  However, each enlistment contract is an independent obligation and characterization of service is determined for that specific period of service without regard to previous periods of service.  The Applicant’s service record documents a retention-warning counseling regarding confirmed level IV spousal abuse and repetitive civilian and military police involvement in domestic disturbances; this counseling advised him that failure to take corrective actions or any further violations of the UCMJ may result in administrative separation, judicial processing, or limitations on his future service.  The Applicant’s misconduct of record during his current enlistment period violated the retention warning of record.  During his current enlistment period, the Applicant was referred to trial by Special Court-Martial for the illegal use of drugs in violation of Article 112(a) of the UCMJ and for violation of Article 107 for making false official statements to investigators.  A jury panel comprised of enlisted and officer members found the Applicant guilty of the specified misconduct at trial by court-martial; they further determined that separation was warranted and adjudged a Bad Conduct Discharge.  Additionally, during the Applicant’s current enlistment he was found guilty at a nonjudicial punishment for violating Article 93 of the UCMJ - mistreatment of subordinates by making lewd sexual comments to subordinates while in a position of special trust and confidence as the SNCOIC.  The Applicant was afforded all of his legal rights, to include legal counsel representation, trial by court-martial, and an appeals process.

The NDRB found the evidence of record, along with the Applicant’s statements, did not contain sufficient mitigating or extenuating factors to offset the seriousness of the offenses for which the discharge was awarded.  Furthermore, the NDRB determined that the Applicant was afforded all his legal rights and was not unjustly treated.  Given the leadership position and seniority of the member, coupled with the misconduct, the NDRB agreed unanimously that the punishment, as awarded, was equitable.  Accordingly, relief in the form of clemency is not warranted.

Summary:  After a thorough review of the available evidence, to include the Applicant’s summary of service,  record entries, the verbatim transcript record of trial by Special Court-Martial, and the discharge process, the NDRB determined that  Therefore, the awarded characterization of service shall  BAD CONDUCT DISCHARGE 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