ex-, USMC

Current Discharge and Applicant’s Request

Application Received:  20100803
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)	20050516 - 20050605  	Active:	

Period of Service Under Review:
Date of Current Enlistment:  20050606	Age at Enlistment:  
Period of Enlistment:   Years   Months
Date of Discharge:  20080409	Highest Rank:  
Length of Service:    Years    Months  04  Days
Education Level:  	AFQT:  69
MOS:  0612 
Proficiency/Conduct Marks (# of occasions):   () /  ()	Fitness Reports:  

Awards and Decorations (per DD 214):	Rifle EX, CAR, ICM, GWOTSM, NDSM, SSDR

Period of UA: NONE

Time Lost Per DD214: 20070519 - 20070527, 9 days

NJP:  2

- 20051102:	Article 92 (Failure to obey order or regulation, underage drinking)
	Awarded: FOP, RESTR, EPD    Suspended:  25 days restriction /25 days EPD for a period of 6 months

- 20060812:	Article 92 (Failure to obey order or regulation, exceeding authorized liberty limits)
	Awarded: FOP, RESTR, EPD    Suspended:  14 days restriction /FOP, for a period of 6 months

SCM:  1

- 20060615:	Article 92 (Failure to obey order or regulation, failed to obey order to avoid all contact with a woman not his wife on 20060612)
	Sentence: FOP CONF 10 days (CONF 20060615 - 20060622, 8 days) HARD LABOR 20 days

SPCM:  1

- 20070615:	Article 128 (Aggravated assault, assault on a person subject to his orders by striking and kicking in the area of the torso, with a means of force likely to produce death or grievous bodily harm with a shod foot and a folding chair)
	Sentence: BCD, FOP, CONF 10 months 
	Pretrial Confinement 20070530 - 20070603 (5 days), Confinement 20070615 - 20071120 (159 days)  
	Suspended: All confinement in excess of 6 months

CC:  

Retention Warning Counseling:  1

- 20051103:	For underage drinking and nonjudicial punishment for violation of Article 92 (20051102)

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 503, Equity.

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

Applicant’s Issues

Nondecisional Issues: The Applicant seeks an upgrade in the characterization of his service at discharge in order to facilitate employment opportunities.  

Decisional Issues: The Applicant contends that his service prior to his misconduct of record as it regards his Special Court-Martial was outstanding and believes it merits consideration.

Decision

Date:  20111117	                 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.  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 four-year enlistment contract under the Infantry training option  The Applicant’s enlistment record reflects his entry into military service with waivers to enlistment and induction standards for an adjudicated law violation of a serious nature and for pre-service illegal drug use (marijuana).  The Applicant also acknowledged  complete understanding of the Marine Corps Policy Concerning Illegal Use of Drugs - in writing - on 20050510.  The highest rank achieved by the Applicant during his enlistment was E-1/Private.  The Applicant’s military service record documents that he is a combat veteran, having served during a combat deployment with an Infantry Battalion in the Al-Anbar Province of Iraq in support of Operation IRAQI FREEDOM (OIF) from 26 July 2006 to 17 February 2007.

The Applicant’s record of service included  6105 retention-counseling warning and   for  of the Uniform Code of Military Justice (UCMJ): Article 92 (Failure to obey order or regulation, 2 specifications).  The Applicant was also administered administrative nonjudicial punishment at summary court-martial for violation of the UCMJ: Article 92 (Failure to obey order or regulation - failed to obey order to avoid all contact with a woman not his wife on 20060612).  Moreover, the Applicant’s service record contains a punitive conviction at trial by Special Court-Martial for violation of UCMJ Article 128 (Aggravated assault, assault on a person subject to his orders by striking and kicking in the area of the torso, with a means of force likely to produce death or grievous bodily harm with a shod foot and a folding chair).  A qualified legal defense counsel represented the Applicant throughout his trial by Special Court-Martial.  The Applicant was tried in accordance with a signed pre-trial agreement in which he pled guilty before a judge alone to a single charge and all others were dismissed with prejudice in return for sentence limitations.  Given the facts of the case, the military trial judge awarded the Applicant a Bad Conduct Discharge, confinement for 10 months, and a forfeiture of pay for 10 months.  In accordance with the pre-trial agreement, the convening authority suspended all confinement in excess of 6 months.  The case was submitted for review to the U.S. Navy–Marine Corps Court of Criminal Appeals without assignments of error; it was reviewed and the findings were affirmed on 15 January 2008.  Subsequently, the Navy Marine Corps Appellate Leave Activity ordered the Bad Conduct Discharge executed on 19 March 2008.  The Applicant’s final discharge was executed on 09 April 2008.

Nondecisional Issue:  The Applicant seeks an upgrade in the characterization of his service at discharge in order to facilitate future employment opportunities.  There is no requirement, or law, that grants re-characterization solely on the issue of facilitating employment opportunities.  Regulations limit the NDRB’s review solely to a determination of clemency based on matters of equity of a discharge when considering a change to a punitive Bad Conduct Discharge.  As such, this issue does not serve to provide a foundation upon which the NDRB can grant relief.

Decisional Issue:  (Clemency/Equity) - CLEMENCY NOT WARRANTED.  The Applicant contends that his service prior to his misconduct of record as it regards his Special Court-Martial was outstanding and believes it merits consideration.  With respect to a discharge adjudged by a court-martial case, the action of the NDRB is restricted to upgrades based on clemency.  The NDRB recognizes that many of our service members are young at the time they enlist for service, however, most manage to serve their enlistments 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 deliberate and repetitive misconduct.  Moreover, despite a servicemember’s prior record of service, certain serious offenses warrant separation from the Naval Service to maintain proper order and discipline.  Violation of Article 128 (Assault) is one such offense.  Prior to the Applicant’s Special Court-Martial, the record of service documents the Applicant having received a retention counseling warning, two nonjudicial punishments, and a summary court-martial for his willful and deliberate failure to abide by lawful orders, regulations, and direct orders from his Commanding Officer.

Due to the Applicant’s refusal to conform to the expected conduct of a United States Marine after administrative punishment and retention counseling, coupled with the need to ensure good order and discipline of the service, the Command referred the charges of physical assault against an Iraqi detainee (a Law of Armed Conflict violation) for trial by Special Court-Martial.  The stated misconduct resulted in the awarding of a punitive Bad Conduct Discharge, a forfeiture of pay and allowances, and confinement for a period of 10 months.  In accordance with the pre-trial agreement, all confinement in excess of 6 months was suspended.  The NDRB found that the evidence of record, along with the Applicant’s statement and supporting documentation, did not contain sufficient mitigating or extenuating factors to offset the seriousness of the offenses for which the discharge was awarded.  Given the repetitive, deliberate, and extensive nature of the misconduct, coupled with the Law of Armed Conflict violation, the NDRB agreed unanimously that the punishment, as awarded, was warranted and was equitable; 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 record of trial by Special Court-Martial, and the discharge process, the NDRB determined that clemency was not warranted.  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