ex-, USMC

Current Discharge and Applicant’s Request

Application Received:  20100713
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)	20041220 - 20050306  	Active:	

Period of Service Under Review:
Date of Current Enlistment:  20050307	Age at Enlistment:  
Period of Enlistment:   Years   Months
Date of Discharge:  20080528	Highest Rank:  
Length of Service:    Year(s)    Month(s)  16  Day(s)
Education Level:  	AFQT:  57
MOS:  7234
Proficiency/Conduct Marks (# of occasions):   () /  ()	Fitness Reports:  

Awards and Decorations (per DD 214):	Rifle     (2)

NJP:  

-20060126:	Article 92 (Failure to obey lawful order or regulation - specifics of charge and punishment NFIR).  
	[Extracted from Page 11, Service Record Book]

- 20060224:	Article  (Fail to obey a lawful general order, 5 specifications)
	Specification 1: Departing MCAS Futenma without a Liberty Card on 20060219
	Specification 2: Remaining off base without a Liberty Card on or about 20060219   
	Specification 3: Departing MCAS Futenma without signing out of the Liberty Logbook on or about 20060219
	Specification 4: Departing MCAS Futenma while assigned to Liberty Class “C” on or about 20060219
   	Specification 5: Consuming alcohol while assigned to Liberty Class “C” on or about 20060219 
	Awarded:     Suspended:  

- 20061229:	Article 130 (Housebreaking, with intent to steal)
	Article 121 (Larceny, steal an ATM card)
	Article 121 (Larceny, steal money, of a value of $360.00)
	Article 92 (Failed to obey a lawful written order, driving a Japanese national’s vehicle without a SOFA status license)
	Article 86 (Unauthorized absence 0730-1330, 20061127)    
	Article  (Failed to obey other lawful written order, leaving MCAS without permission, while on Liberty Risk “C” to attend a class on MCB Camp Foster) 
	Awarded:     Suspended:  
- 20070517:	Article 92 (Failure to obey other lawful written order, not remaining in the appropriate uniform of the day while on Liberty Risk “C”  
	Awarded:   Suspended:  

SPCM:  

- 20071016:	Article  (Larceny, 6 specifications)
	Specification 1: Steal a wallet and credit the property of Tech Sgt 
	Specification 2: Steal US currency in the amount of $400.00 the property of NFCU
	Specification 3: Steal US currency in the amount of $100.00 the property of NFCU
	Specification 4: Steal a jacket and shirt, a value of less than $500.00
	Specification 5: Steal jeans a value of less than $500.00, the property of American Depot
	Specification 6: Steal a cap, a value of less than $500.00, the property of Vanilla Sky
	Sentence:  CONF for 6 months (20071016-20071118, 33 days)

CC:  	SCM:  

Retention Warning Counseling:  

- 20060224:	For violation of Article 92, punishment received at NJP on 20060126 

- 20070108:	For violation of Article 130, Housebreaking by unlawfully entering dwelling, Article 121, Larceny by stealing an ATM card, Article 121, Larceny by stealing money in the amount of $360.00, Article 92, Failure to obey a lawful written order by wrongfully driving without SOFA status license, Article 92, Failure to obey a lawful written order by leaving MCAS Futenma while on liberty risk class “C”, Article 86, Absence without leave by being absent from appointed place of duty for approximately 6 hours.   

-20070518: 	Counseled for violation of Article 92 violation, which resulted in NJP dated 20070517 for said violation.

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 the characterization of his service at discharge to a General (Under Honorable Conditions) in order to facilitate eligibility for Department of Veterans Affairs (VA) educational benefits.
 
2.	Decisional issues: The Applicant did not identify any issues related to the propriety or equity of the discharge action for the NDRB’s consideration; however, by submission of his application for review, he is seeking clemency in the characterization of service.

Decision

Date:  20111104	  	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, 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 documents entry into military service at age 19 on an 5-year enlistment contract, ultimately receiving training as an Air Command and Control Electronics Operator with the Marine Corps.  The Applicant’s enlistment record reflects his entry into military service with wavier for pre-service, illegal drug use- marijuana.  The highest rank achieved by the Applicant during his enlistment was Private First Class.

The Applicant’s period of service under review reflects three paragraph 6105 retention-counseling warnings.  Additionally, his record of service contains four nonjudicial punishments for violations of the Uniform Code of Military Justice (UCMJ), specifically: Article 86 (Absence without leave - failure to be at appointed place of duty), Article 92 (Failure to obey order or regulations, 9 separate specifications over 4 NJPs), and Article 121 (Larceny, 2 specifications).  Moreover, the Applicant’s service record documents a punitive conviction and punishment as adjudged by a special court-martial on 16 October 2007.  The Applicant was subject to trial by special court-martial for violation of the UCMJ: six specifications of violating Article 121 (Larceny and wrongful appropriation).  A qualified legal defense counsel represented the Applicant throughout the trial by special court-martial.  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 45 days.  Given the facts of the case, the trial judge awarded the Applicant a Bad Conduct Discharge and confinement for a period of 6 months (all confinement in excess of 45 days was suspended by the convening authority in accordance with the PTA).  No request for clemency was submitted to the Convening Authority for consideration and the case was submitted for appellate review without assignment of error to the U.S. Navy–Marine Corps Court of Criminal Appeals.  The case was reviewed and the findings were affirmed on 25 February 2008.  Having been affirmed by appellate review, the Navy Marine Corps Appellate Leave Activity ordered the Bad Conduct Discharge executed on 02 May 2008.  The Applicant’s final discharge was issued on 28 May 2008.

Besides his DD Form 293, the Applicant provided no other documentation in support of his request for consideration by the NDRB.

Nondecisional issue - The Applicant seeks an upgrade in the characterization of his service at discharge from Bad Conduct to General (Under Honorable Conditions) to facilitate access to VA educational benefits.  There is no requirement, or law, that grants re-characterization solely on the issue of obtaining veterans educational benefits.  With 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 Review (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 decisional issues related to the equity of the discharge 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 2 years and 6 months in which time he was subject to four NJPs and a trial by special court-martial.  The Applicant’s record of misconduct includes a pattern of serious misconduct related to a failure to obey orders and regulations and theft.  The Applicant was counseled and notified that he was being recommended for administrative separation due to the commission of a serious offense (basis: NJP - Article 121, Larceny and Housebreaking) when he again committed serious misconduct.  The command opted to prefer the new charges of misconduct to trial by special court-martial.  The stated misconduct resulted in the special court-martial awarding a punitive Bad Conduct Discharge and confinement for 6 months.

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 some members may be less mature than others, 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.  Facing administrative separation after four NJPs, the Applicant again committed misconduct.  As such, the command opted to pursue punitive punishment and discharge vice continued administrative processing.  The repetitive theft/larceny of an individual service member’s personal property for personal gain is not minor misconduct and warranted 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.  

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