ex-, USMC 

Current Discharge and Applicant’s Request

Application Received:  20101223
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)	19970822 - 19980706  	Active:	

Period of Service Under Review:
Date of Current Enlistment:  19980707	Age at Enlistment:  
Period of Enlistment:   Years   Months
Date of Discharge:  20011105	Highest Rank:  
Length of Service:    Year(s)    Month(s)  04  Day(s)
Education Level:  	AFQT:  39
MOS:  0311
Proficiency/Conduct Marks (# of occasions):   () /  ()	Fitness Reports:  

Awards and Decorations (per DD 214):	Rifle  

Periods of CONF:  

NJP:  	SCM:  		CC:  	Retention Warning Counseling:  

SPCM:  

- 19990803:	Article  (Absence without leave - Absented himself from his unit, without authority, on 19990112 and did remain so absent until 19990707 (176 days) - absence terminated by surrender to military authority) 
	Sentence Adjudged: BCD, RIR E-1, CONF 45 days  
	Convening Authority Action: The sentence is approved, and except for the Bad Conduct Discharge, is ordered executed; however, all confinement is suspended and will be remitted without further action in accordance with the terms of the pre-trial agreement.  

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

Issue 1:  The Applicant seeks an upgrade in the characterization of his service at discharge in order to facilitate employment opportunities.

Issue 2:  The Applicant seeks clemency in the form of an upgrade in the characterization of his service at discharge, contending that the characterization of service at discharge was inequitable; he was young and immature but now seeks to move forward with his life, ten years later.

Decision

Date:  20120419	       	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.  The Applicant submitted one issue related to the equity of his discharge for consideration in determining matters of clemency.  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.  Accordingly, the Applicant’s case was considered under the pertinent standards of equity to determine if any factors in this particular case merited clemency.  Matters of propriety are addressed through the Courts of Appeal as a function of the Applicant’s legal rights.    

The Applicant’s service record documents that he entered military service at age 18 on a four-year enlistment contract under an Infantry Option training guarantee.  The Applicant’s enlistment record further reflects this entry into military service with a waiver to enlistment and induction standards for an adjudicated law violation of a serious offense and illegal pre-service drug use (marijuana).  The highest rank achieved by the Applicant during his enlistment was E-2/Private First Class.  The Applicant completed approximately 1 year and 6 months of his enlistment contract before absenting himself from his unit, being dropped from the unit rolls, and being declared a deserter.  The Applicant’s enlistment record documents one punitive conviction and punishment as adjudged by a Special Court-Martial on 3 August 1999 for violation of Article 86 (Absence without leave - unauthorized absence, in excess of 30 days).  A qualified legal defense counsel represented the Applicant throughout his trial by Special Court-Martial.  Given the facts of the case, the military trial judge awarded the Applicant a Bad Conduct Discharge, forfeiture of pay, reduction in rank to E-1, and confinement for a period of 45 days.  The Applicant was tried in accordance with a signed Pre-Trial Agreement (PTA) in which he agreed to plead guilty and accept trial by judge alone in exchange for leniency by the Convening Authority on matters of sentencing (all confinement suspended if a discharge is awarded).  The case was submitted for review to the U.S. Navy-Marine Corps Court of Criminal Appeals without assignment of error; the case was reviewed and the findings were affirmed on 23 July 2001.  The Secretary of the Navy Clemency and Parole Board reviewed the results of the Applicant’s court-martial and determined that clemency was not warranted.  Subsequently, the Navy Marine Corps Appellate Leave Activity ordered the Bad Conduct Discharge executed and the Applicant was discharged.  

Issue 1: (Nondecisional)  The Applicant seeks an upgrade to his discharge characterization of service in order to facilitate employment opportunities (Baltimore Police).  There is no requirement, or law, that grants re-characterization solely on the issue of facilitating employment opportunities; likewise, the NDRB has no authority to upgrade discharges in order to facilitate access to Department of Veterans Affairs (VA) benefits programs.  Regulations limit the NDRB’s review solely to a determination of the propriety and the equity of a discharge.  When considering a change to a punitive Bad Conduct Discharge as awarded by a Special Court-Martial, the NDRB is further restricted to awarding clemency based on matters regarding the equity of a discharge only.  As such, this issue does not serve to provide a foundation upon which the NDRB can grant relief.

Issue 2: (Decisional) (Clemency)  CLEMENCY NOT WARRANTED.  The Applicant seeks clemency in the form of an upgrade in the characterization of his service at discharge, contending that the characterization of service at discharge was inequitable; he was young and immature and now seeks to move forward with his life, ten years later.  As such, 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 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 long-term continued misconduct.  Furthermore, the NDRB recognizes that serving in the military is challenging, however, most service members serve honorably and therefore earn their Honorable discharges.  In fairness to those service members, commanders and separation authorities are tasked to ensure that undeserving Sailors and Marines receive no higher characterization than is due.  Despite a service member’s prior record of service, certain serious offenses, though isolated, warrant separation from the Naval Service in order to maintain good order, discipline, and morale.  Violation of Article 86 (in excess of 30 days - terminated by surrender) is one such offense, carrying with it a possible punitive discharge and confinement for up to one year, if adjudicated at trial by Special or General Court-Martial.  

The NDRB determined that the Applicant’s misconduct of record was conduct involving one or more acts or omissions that did constitute a significant departure from the conduct expected of members of the Naval Service.  Given the circumstances of the case, coupled with the nature of the misconduct and the standards and norms of the service, the NDRB determined that the punishment as awarded by the military trial judge and approved by the Convening Authority was equitable and was consistent with the characterization of discharge given others in similar circumstances.  Furthermore, the NDRB found that the Applicant’s youth, immaturity, and personal issues were not mitigating factors to the misconduct of record and that relief in the form of clemency is not warranted.  After a thorough review of the Applicant’s record and issues submitted, the NDRB determined that clemency was not warranted and that the sentence awarded the Applicant at his court-martial was appropriate for the offenses he committed.  Clemency not warranted.

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), 701 South Courthouse Road, Suite 1001, Arlington, VA 22204-2490 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