ex-, USMC 

Current Discharge and Applicant’s Request

Application Received:  20101018
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)	19990614 - 19990713  	Active:	

Period of Service Under Review:
Date of Current Enlistment:  19990714	Age at Enlistment:  
Period of Enlistment:   Years   Months
Date of Discharge:  20040430	Highest Rank:  
Length of Service:    Years    Months  17  Days
Education Level:  	AFQT:  86
MOS:  6323
Proficiency/Conduct Marks (# of occasions):   () /  ()	Fitness Reports:  

Awards and Decorations (per DD 214):	Rifle MM SSDR MM

Period of CONF:  

NJP:  1

- 20000519:	Article 92 (Failure to obey order or regulation, 2 specifications)
	Specification 1: Underage drinking on 20000507
	Specification 2: Driving while intoxicated on 20000507
	Awarded: RIR FOP  Suspended:  FOP

SCM:  NONE	CC:  NONE 

SPCM:  1

- 20010822:	Article 134 (Misprision of a serious offense)
	Sentence: BCD, RIR, CONF 120 days      Suspended: all Confinement in excess of 51 days
	Convening Authority Action: The sentence is approved and, except for the Bad Conduct Discharge, will be executed.  In accordance with the Pre-Trial Agreement, all confinement in excess of time already served is suspended for a period of 12 months.

Retention Warning Counseling:  3

- 20000301:	For unauthorized absence on 20000221

- 20010701:	For failure to obey order or regulation and breaking restriction

- 20011102:	For disrespect to a superior noncommissioned officer on 20011030

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 access to Department of Veterans Affairs (VA) educational benefits.

Decisional Issues - The Applicant contends his discharge is inequitable, because it was based on the charge of aiding and concealing a serious offense that was committed by another Marine, who was acquitted of all charges at trial by General Court-Martial.  The Applicant believes his post-service conduct is worthy of consideration.

Decision

Date:  20120209	        	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, as stated in a court-martial, 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 is a U.S. citizen who was raised abroad in Nigeria, returning to the United States at age 17.  He entered military service at age 18 on a 4-year enlistment contract with a guarantee of training as an Aviation Mechanic.  The Applicant’s enlistment record reflects his entry into military service with a waiver for pre-service illegal drug use (marijuana).  The highest rank achieved during his enlistment was Private First Class (E-2).
 
The Applicant’s record of service included three 6105 retention-counseling warnings and one nonjudicial punishment (NJP) for violation of the Uniform Code of Military Justice (UCMJ); specifically, Article 92 (Failure to obey order or regulation, 2 specifications).  Moreover, the Applicant’s record of service documents a trial by Special Court-Martial for violation of Article 134 (Misprision of a serious offense).  A qualified legal defense counsel represented the Applicant throughout his trial by Special Court-Martial.  The Applicant accepted a pre-trial agreement in which he agreed to request trial by military judge alone and plead guilty to the charge as specified in return for a limitation on any confinement adjudged.  Given the Applicant’s testimony and the facts of the case, the trial judge awarded the Applicant a Bad Conduct Discharge, confinement for 120 days, and a reduction in grade to E-1.  However, the trial judge also opined during sentencing that the Convening Authority should “very seriously consider suspending the Bad Conduct Discharge in this case” and that “I strongly request he consider taking my suggestion.”  The Convening Authority reviewed the trial record, the respondent’s clemency request, and the record of service and ordered the sentence, as adjudged, executed.  In accordance with the pre-trial agreement sentence limitation, the Applicant served 51 days of the 120 days of adjudged confinement.  The U.S. Navy–Marine Corps Court of Criminal Appeals reviewed the case with three assignments of error submitted by defense counsel; the Court affirmed the decision of the trial judge on 06 May 2003 and ordered the Bad Conduct Discharge executed.

Nondecisional issue - The Applicant seeks an upgrade in the characterization of his service at discharge in order to facilitate eligibility for Department of Veterans Affairs (VA) 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 a discharge.  There is no requirement, or law, that grants re-characterization on the issue of facilitating access to VA benefits; as such, the NDRB has no authority to upgrade a discharge solely for this purpose and cannot form a basis of relief.  No action warranted.

Decisional Issue: (Clemency/Equity) PARTIAL CLEMENCY WARRANTED.  The Applicant contends his discharge is inequitable, because it was based on the charge of aiding and concealing a serious offense, committed by another Marine, who was acquitted of all charges at trial by General Court-Martial.  Additionally, the Applicant believes his post-service conduct is worthy of consideration.

The Applicant’s case was considered under the pertinent standards of equity to determine if any factors in this particular case merited clemency.  A Special Court-Martial convicted the Applicant at trial for aiding in the concealment of an assault and battery.  The Applicant accepted a pre-trial agreement to plead guilty in exchange for a confinement limitation after having been in pre-trial confinement for 51 days.  Following the Applicant’s trial, a General Court-Martial tried the companion case - the actual assault; in that case, the respondent was acquitted due to the court’s determination that the assault was the result of self-defense.  The Applicant’s verbatim record of trial documents numerous instances where the trial judge questioned whether self-defense was appropriate in the case, however, the Applicant continued to testify that the assault committed was wrong, regardless of self-defense, and he was therefore guilty.  Post-trial, the military judge advocated for the Applicant’s retention and for the Convening Authority to provide clemency by suspending the Bad Conduct Discharge.  The NDRB reviewed all of the available records, supporting documents, facts, elements of discharge, and circumstances unique to this case.  Given the unique circumstances of the case, coupled with the reason for, and the nature of, the misconduct, the NDRB determined that the punishment was inequitably harsh and that some form of clemency was warranted.

There is no law or regulation to upgrade an unfavorable discharge based solely on the passage of time or good conduct in civilian life subsequent to leaving the service.  The NDRB is authorized to consider outstanding post-service factors in the re-characterization of a discharge to the extent that such matters provide a basis for a more thorough understanding of the Applicant’s performance and conduct during the period of service under review.  However, the Applicant should be aware submission of these items alone does not guarantee an upgrade from an unfavorable discharge as each discharge is reviewed by the NDRB on a case-by-case basis.  The characterization of service at discharge is recognition of the quality of a Marine’s performance and conduct.  Most Marines serve honorably; in fairness to them, commanders and separation authorities are tasked to ensure that service members receive no higher characterization than is due.  An Honorable characterization of service is the highest quality of characterization and is appropriate when the quality of a Marine’s service has met the standards of accepted conduct and performance of duty for military personnel, or is otherwise so meritorious that any other characterization of service would be clearly inappropriate.  A General (Under Honorable Conditions) discharge is warranted when the quality of the member’s service has been honest and faithful but significant negative aspects of the member’s conduct or performance of duty outweighed the positive aspects of the member’s service record.

The NDRB reviewed the Applicant’s post-service documentation and official service record, and took into consideration his testimony, his in-service proficiency and conduct average - before discharge - of 4.7/4.8, and the facts and circumstances unique to this case, to include the nonjudicial punishment and three retention warnings (not related to the trial by Special Court-Martial).  The NDRB determined the quality of the Applicant’s service generally did not meet the standard of acceptable conduct and performance for Naval personnel to warrant an Honorable characterization as requested.  However, the NDRB determined that the Applicant’s service had been honest and faithful, but that significant negative aspects of his conduct or performance of duties did outweigh the positive aspects of his military record.  Therefore, partial clemency is warranted based on equitable grounds.  By a vote of 5-0, the NDRB determined that an upgrade in discharge characterization to General (Under Honorable Conditions) was warranted.  Additionally, the NDRB determined that the narrative reason for discharge is not equitable in light of the unique circumstance related to this case.  As such, the Board voted unanimously to change the narrative reason for separation to SECRETARIAL AUTHORITY. 

Summary:  After a thorough review of the available evidence, to include the Applicant’s summary of service,  record entries, the verbatim record of trial by Special Court-Martial, and the discharge process, the NDRB found that  Therefore, the awarded characterization of service shall  GENERAL (UNDER HONORABLE CONDITIONS), and the narrative reason for separation shall change to SECRETARIAL AUTHORITY.  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