ex-, USMC

Current Discharge and Applicant’s Request

Application Received:  20100330
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)	19990522 - 19991005  	Active:	

Period of Service Under Review:
Date of Current Enlistment:  19991006	Age at Enlistment:  
Period of Enlistment:   Years   Months
Date of Discharge:  20041020	Highest Rank:  
Length of Service:    Year(s)    Month(s)  14  Day(s)
Education Level:  12	AFQT:  37
MOS:  9971 (Basic Marine)
Proficiency/Conduct Marks (# of occasions): 1.6 (Avg Enl) / 1.2 (Avg Enl)	Fitness Reports:  

Awards and Decorations (per DD 214):  Rifle ,  

Periods of UA (2 periods):  20 Aug 2000 - 05 Oct 2000 (46 days); 02 Mar 2001 - 08 April 2001 (37 Days)

Period of CONF (2 periods):
     1 - Pre-Trial Conf: 06 Oct 2000 - 10 Oct 2000 (5 days) and 30 Oct 2000 - 05 Nov 2000 (7 days) / Conf: 06 Nov 2000 - 03 Jan 2001 (59 days)
     2 - Pre-Trial Conf: 20 Apr 2001 - 26 June 2001 (67 days) / Conf: 27 Jun 2001 - 11 Aug 2001 (45 days)

NJP:  

SPCM:  

- 20001106:	Article  (Absence without leave; specifically, absenting himself from his unit, without authorization, from on or about 20 Aug 2000 to 05 Oct 2000 (46 Days), ended by apprehension by civilian authorities)
	Article  (Breaking Restriction – 29 Oct 2000) 
		Sentence:  ,  (90 days / 64 days served), 

- 20010627:	Article 83 (Fraudulent Enlistment; specifically, by means of deliberately concealing facts regarding pre-service drug abuse – LSD use, 4 occasions)
	Article 86 (Absence without leave; specifically, absenting himself from his unit, without authorization, from on or about 02 Mar 2001 to 08 April 2001 (37 Days),
	Article 134 (four specifications: dishonorably failing to pay just debt by failure to maintain sufficient funds)
		Sentence:  , (152 days / 112 days served), 

CC:  	

Retention Warning Counseling:  

Types of Documents Submitted/reviewed

Related to Military Service:
	DD 214:		Service/Medical Record:		Other Records:	
					(Verbatim Record of Trial SPCM)

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.

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

1.	Nondecisional issue: The Applicant seeks an upgrade in his characterization of service at discharge in order to better his opportunities for employment with local law enforcement agencies.  

2.	Decisional issue:  (1) The Applicant contends that he warrants clemency in characterization of service at discharge due to mitigating factors involved with his unauthorized absence, not specified or documented by the Applicant in his request.  (2) Applicant seeks clemency in characterization of service at discharge contending that he was not advised by counsel that he could request clemency from the convening authority.  (3) Applicant seeks clemency in the characterization of his service at discharge contending that he was young and immature, but is a good person who made youthful mistakes.

Decision

Date:  20110429	     	     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 period of service under review reflects no 6105 retention-counseling warnings or nonjudicial punishments for violation of the Uniform Code of Military Justice (UCMJ).  However, the Applicant’s service record does contain punitive punishment as adjudged by a Special Court-Martial - twice.  Qualified defense counsel represented the Applicant during both of his trials by Special Court-Martial.  The Applicant was subject to his first Special Court-Martial on 06 Nov 2000 for violation of Article 86 (Unauthorized absence, 46 days) and Article 134 (Breaking restriction); he was adjudged 90 days confinement, a reduction in rank to Private/E-1, and was ordered a forfeiture of pay.  Having been retained in the service, the Applicant returned to his command to complete his designated formal school training after completing his adjudged period of confinement.  

The Applicant was subject to a second trial by Special Court-Martial on 27 June 2001.  In accordance with his signed pre-trial agreement, the Applicant requested trial by military judge alone and further elected to plead guilty to the charge of violation of Articles 83, 86, and 134 of the UCMJ for consideration of removing the charges from a trial by General Court-Martial.  In a Special Court-Martial trial by judge alone, the Applicant was found guilty of violating the UCMJ as specified.  Given the facts of the case, the trial judge awarded the Applicant a Bad Conduct Discharge, confinement for 152 days, and ordered a forfeiture of pay.  The Applicant served the remaining confinement on his sentence after receiving credit for 67 days of pre-trial confinement already served.  The case was submitted for review with an assignment of error to the U.S. Navy–Marine Corps Court of Criminal Appeals; it was reviewed and the findings were affirmed on 29 April 2004.  Subsequently, the Bad Conduct Discharge was ordered executed on 29 September 2004.      

Nondecisional issue - The Applicant seeks an upgrade in his characterization of service at discharge in order to better his opportunities for employment with local law enforcement agencies.  There is no requirement, or law, that grants re-characterization based solely on the issue of enhancing employment or educational opportunities.  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/Equity) - RELIEF NOT WARRANTED.  The Applicant contends that he warrants clemency in characterization of service at discharge due to mitigating factors involved with his unauthorized absence, not specified or documented by the Applicant in his request.  Furthermore, the Applicant seeks clemency in characterization of service at 

discharge contending his counsel failed to advise him that he could request clemency from the Convening Authority.  Moreover, the Applicant contends the characterization of his service at discharge was overly harsh; he was young and immature, but is a good person who made some youthful mistakes.

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 documents two trials by Special Court-Martial while still in the entry level training phase of his enlistment contract.  The Applicant was found guilty, awarded a reduction in rank and confinement for 90 days, and was retained; early on in his career, he received a second chance to correct his deficiencies and conduct and continue forward with his enlistment.  The Applicant failed to seek assistance or correct his faltering conduct; subsequently, he was subject to a second trial by Special Court-Martial for continued violations of the UCMJ.  

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 personal letter to the NDRB, he failed to provide any additional documentation or evidence on his behalf to support his contention that there were extenuating circumstances surrounding his discharge that were not considered by the Convening Authority or Judge.  The Applicant’s statements alone, without sufficient documentary evidence, are not enough to form a basis of relief.

On 27 June 2001, the Applicant signed his “Appellate Rights Statement” as witnessed by his defense counsel.  This document was submitted to the Judge Advocate General of the U.S. Navy, signifying that the Applicant fully understood all his post-trial legal rights regarding his conviction and sentence from a trial by court-martial.  Specifically, in paragraph 1.a, the Applicant acknowledged that his defense counsel had advised him of his right to request deferment of any sentence to confinement, and of his counsel’s obligation to assist him, in preparing matters for submission to the convening authority for consideration, prior to his taking action.  Neither the Convening Authority nor the Staff Judge Advocate received any matters for consideration from the Applicant or the Defense Counsel as explained in the Appellate Rights Statement.  As such, on 05 November 2001, after waiting the required notification and review period, the Convening Authority took action and approved the sentence and ordered it executed.  

The NDRB recognizes that many of our service members are young at the time they enlist for service, but most manage to serve honorably.  While we understand some members may be less mature than others, the NDRB does not view a member’s claim of immaturity to be a mitigating factor or a sufficient reason for misconduct, especially repetitive misconduct.  The NDRB determined that the Applicant’s youth or maturity were not mitigating factors to his misconduct.    

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.  Given the unique circumstances of the case, coupled with the repetitive and deliberate misconduct, the NDRB agreed unanimously that the punishment was equitable and that relief in the form of clemency was not warranted.  Therefore, after reviewing the Applicant’s issue, the supporting documentation, and the evidence of record contained in the verbatim record of trial, the NDRB discerned no inequity in the characterization of service and determined that clemency was not warranted.  Relief denied.

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 Board found 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