ex-, USMC

Current Discharge and Applicant’s Request

Application Received:  20100701
Characterization of Service Received:  
Narrative Reason for Discharge:  
Authority for Discharge:  MARCORSEPMAN 

Applicant’s Request:	Characterization change to: UNCHARACTERIZED OR GENERAL (UNDER HONORABLE CONDITIONS)
	Narrative Reason change to: 

Summary of Service

Prior Service:
Inactive:	USMCR (DEP)	19920309 - 19921101  	Active:	

Period of Service Under Review:
Date of Current Enlistment:  19921102	Age at Enlistment:  
Period of Enlistment:   Years   Months
Date of Discharge:  19970724	Highest Rank:  
Length of Service:    Years    Months  23  Days
Education Level:  	AFQT:  82
MOS:  3043
Proficiency/Conduct Marks (# of occasions):   () /  ()	Fitness Reports:  

Awards and Decorations (per DD 214):	Rifle EX NDSM SSDR (2) UNM MUC AFEM

Periods of UA/CONF:  

NJP:  2

- 19940510:	Article 89 (Disrespect toward superior commissioned officer, disrespectful statement toward Lieutenant H. by saying “my lieutenant is a joke”)
	Article 91 (Insubordinate conduct toward warrant officer, noncommissioned officer, or petty officer, insubordinate conduct toward Corporal A. by use of disrespectful and provoking speech in questioning why he was being assigned to duties)
	Awarded: FOP RESTR EPD  Suspended:  

- 19950705:	Article 89 (Disrespect toward a superior commissioned officer, disrespect toward Lieutenant S. by saying “I’m fed up with it”)
	Article 91 (Insubordinate conduct toward warrant officer, noncommissioned officer, or petty officer, disrespect toward a noncommissioned officer by saying “I’m not staying here” in front of junior Marines
	Article 117 (Provoking speeches or gestures, throwing money and chevrons on the commanding officer’s desk)
	Awarded: RIR CCU 30 days  Suspended:  RIR

SCM:  NONE	CC:   

Retention Warning Counseling:  3

- 19931117:	For failure to follow proper supply procedures and accountability 
- 19931117:	For deficiencies in judgment and failure to be at appointed place of duty 
- 19950209:	For placement on the weight control program and not maintaining the physical standards of Marines

SPCM:  

- 19960304:	Article 108 (Military property of United States - Loss, damage, destruction, or wrongful disposition, 6 specifications)
	Specification 1: Sold one sleeping bag liner, one ALICE pack, one ALICE pack frame, one field jacket, one poncho, and one poncho liner totaling a value of about $187.35, military property of the United States
	Specification 2: Sold two sleeping bags totaling a value of about $436.30, military property of the United States
	Specification 3: Sold one sleeping bag of a value of about $218.15, military property of the United States
	Specification 4: Sold one sleeping bag of a value of about $218.15, military property of the United States
	Specification 5: Sold two sleeping bags, one field jacket, and one load bearing vest totaling a value of about $535.00, military property of the United States
	Specification 6: Sold one sleeping bag of a value of about $218.15, military property of the United States
	Article 121 (Larceny and wrongful appropriation, 2 specifications)
	Specification 1: Wrongful appropriation of five Memorandum Receipt for Individual Equipment receipts, military property of the United States
	Specification 2: Stole one load bearing vest, military property of the United States 
	Sentence:  60 days (19960304 - 19960423, 50 days) 

Administrative Corrections to the Applicant’s DD 214

The NDRB did note administrative errors on the original DD Form 214:

	  “BAD CONDUCT DISCHARGE”
  “COURT-MARTIAL”

The NDRB will recommend to the Commandant of the Marine Corps that the DD 214 be corrected as appropriate.

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.  Nondecisional issues: The Applicant seeks an upgrade in the characterization of his service at discharge to General (Under Honorable Conditions) or Uncharacterized in order to facilitate access to Department of Veterans Affairs (VA) Benefits (health and education) and to facilitate better opportunities for employment.  

2.  Decisional issues: The Applicant did not identify any issues related to inequity; however, by submission, he has requested consideration for clemency in the form of an upgrade in the characterization of his service at discharge.

Decision

Date:  20111005	       	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, 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 are presumed by the NDRB to be established facts.  As such, 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 20 on a 4-year enlistment open contract, ultimately receiving training as a supply administration specialist with the Marine Corps.  The Applicant’s enlistment record reflects his entry into military service with waiver for exceeding the Marine Corps height and weight standards at enlistment (+9 pounds).  The highest rank achieved by the Applicant during his enlistment was E-2/Private First Class.  The Applicant’s period of service under review reflects three paragraph 6105 retention-counseling warnings.  Additionally, his record of service contains two non-judicial punishments for violations of the Uniform Code of Military Justice (UCMJ): Article 89 (Disrespect to a superior commissioned officer, 2 specifications), Article 91 (Insubordinate conduct toward a warrant officer, noncommissioned officer, or petty officer, 2 specifications), and Article 117 (Provoking speech and gestures).  Moreover, the Applicant’s service record reflects a punitive conviction and punishment as adjudged by a Special Court-Martial on 04 March 1996.  The Applicant was subject to trial by Special Court-Martial for violations of the UCMJ: Article 108 (Military property of the United States – loss, damage, destruction, or wrongful disposition, 6 specifications) and Article 121 (Larceny and wrongful appropriation, 2 specifications).  In accordance with a written and signed pre-trial agreement (PTA), the Applicant agreed to trial by military judge alone and further elected to plead guilty to the charges.  In consideration, the convening authority agreed to withdraw or reduce charges and to suspend all confinement adjudged in excess of 90 days.  Given the facts of the case, the trial judge awarded the Applicant a Bad Conduct Discharge, reduction in grade to E-1, and confinement for a period of 60 days.  The case was submitted for review without assignments of error to the U.S. Navy–Marine Corps Court of Criminal Appeals; it was reviewed and the findings were affirmed on 28 April 1997.  Subsequently, the Navy Marine Corps Appellate Leave Activity ordered the Bad Conduct Discharge executed on 24 July 1997.  The Applicant’s final discharge was issued on that date.

Nondecisional issue - Besides his DD Form 293, the Applicant provided no other documentation in support of his request for consideration by the NDRB.  The Applicant seeks an upgrade in the characterization of his service at discharge from Bad Conduct to General (Under Honorable Conditions) or Uncharacterized in order to facilitate access to VA benefits and to facilitate better opportunities for employment.  There is no requirement, or law, that grants re-characterization solely on the issue of obtaining veterans health and educational benefits.  Additionally, the NDRB has no authority to upgrade a discharge for the sole purpose of enhancing employment opportunities.  In respect to a Bad Conduct Discharge, regulations limit the NDRB’s review solely to a determination of clemency in consideration of the equity of the discharge.  As such, this issue does not serve to provide a foundation upon which the NDRB can grant relief.  

Board Issue (Clemency/Equity) - RELIEF NOT WARRANTED.  The Applicant contends that he warrants clemency regarding the characterization of his service at discharge by submission of his request for review; however, the Applicant did not identify any specific issues of inequity for the NDRB’s consideration.  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.  The Applicant’s service record documents a period of service of approximately 3 years and 4 months in which time he was subject to two nonjudicial punishments and a trial by Special Court-Martial.  The Applicant’s misconduct includes a pattern of misconduct related to disrespect and insubordination, however, his violation of the special trust and confidence placed in him as the Battalion supply administration management specialist by misappropriating military equipment for profit, resulted in the command seeking punitive disciplinary action.  The stated misconduct resulted in the Special Court-Martial awarding a punitive Bad Conduct Discharge, reduction to E-1, and confinement for 60 days.

The NDRB recognizes that many of our service members are young at the time they enlist for service, however, most manage to serve their enlistment honorably.  While understood that some members may be less mature than others may, the NDRB does not view a member’s youth or immaturity to be a mitigating factor or a sufficient reason for misconduct, especially repetitive misconduct.  The verbatim record of trial by court-martial documented that the Applicant was facing financial hardship; however, there is no evidence in the record, nor did the Applicant provide any documentation, to indicate he attempted to use the numerous services available for service members who undergo personal problems during their enlistment such as the Navy Chaplain, Medical or Mental Health professionals, Navy Relief Society, Family Advocacy Programs, or even the Red Cross.  He opted instead to defraud the government in order to supplement his financial needs.  Despite a servicemember’s prior record of service, certain serious offenses warrant separation from the service in order to maintain good order and discipline.  The theft or misappropriation of Battalion military equipment for personal profit is not minor misconduct and warrants punitive disciplinary action.  The NDRB found that the evidence of record, along with the Applicant’s statement, did not contain sufficient mitigating or extenuating factors to offset the seriousness of the offenses for which the discharge was awarded.  Given the short period of the Applicant’s service, coupled with the repetitive and deliberate nature of the misconduct, the NDRB agreed unanimously that the punishment, as awarded, was equitable and that relief in the form of clemency is 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 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.  After 15 years time since discharge has elapsed, the Applicant must address all correspondence to the Board for Correction of Naval Records.  

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