ex-, USMCR 

Current Discharge and Applicant’s Request

Application Received:  20110119
Characterization of Service Received:  
Narrative Reason for Discharge:  
Authority for Discharge:  MARCORSEPMAN 

Applicant’s Request:	Characterization change to: 
	Narrative Reason change to: DISCRETION OF THE NDRB

Summary of Service

Prior Service:
Inactive: 	NONE		Active:   NONE

Period of Service Under Review:
Date of Current Enlistment:  19980618	Age at Enlistment:  
Period of Enlistment:   Years   Months  [6x2 ROEP]
Date of Discharge:  20050414	Highest Rank:  
Length of Service:  
   Inactive:     Year(s)    Month(s) 04  Day(s)
   Active:       Year(s)    Month(s) 00  Day(s)
   Appellate Leave:       Year(s)    Month(s) 23  Day(s)
 
Education Level:  	AFQT:  64
MOS:  0311
Proficiency/Conduct Marks (# of occasions):   () /  ()	Fitness Reports:  

Awards and Decorations (per DD 214):	Rifle , , AFRM

Lost time per DD214: In Hands Civilian Authorities from 20020930 to 20021001 (2 days)

NJP:  	SCM:  		CC:  

SPCM:  

- 20021218:	Article  (Absent without leave - Unauthorized absence; absented himself from his unit, without authority, on 20020214 and did remain so absent until 20020930 (228 days) - absence terminated through apprehension by civilian law enforcement authorities)
	Sentence Adjudged: , , ,CONF 90 days (Pre-trial conf: 20021002 - 20021217 [76 days])
	Convening Authority Action: The sentence is approved and, except for the Bad Conduct Discharge, will be executed; but in accordance with the PTA, the execution of that part of the sentence adjudging confinement greater than 30 days is suspended for 6 months from the date of trial, at which time, unless the suspension is sooner vacated, the suspended part of the sentence will be remitted without further action.

Retention Warning Counseling:  

- 19990411:	For unsatisfactory participation in the SMCR, Specifically, unexcused absence from Inactive Duty Training (IDT) on 19990410-19990411.    

- 19990425:	For unsatisfactory participation in the SMCR, Specifically, unexcused absence from Inactive Duty Training (IDT) on 19990423-19990425.    
- 20000708:	For unsatisfactory participation in the SMCR, Specifically, unexcused absence from Inactive Duty Training (IDT) on 20000624-20000708.    

- 20000730:	For unsatisfactory participation in the SMCR, Specifically, unexcused absence from Inactive Duty Training (IDT) on 20000728-20000730.    

- 20000910:	For unsatisfactory participation in the SMCR, Specifically, unexcused absence from Inactive Duty Training (IDT) on 20000908-20000910.    

- 20001022:	For unsatisfactory participation in the SMCR, Specifically, unexcused absence from Inactive Duty Training (IDT) on 20001020-20001022.    

- 20001105:	For unsatisfactory participation in the SMCR, Specifically, unexcused absence from Inactive Duty Training (IDT) on 20001103-20001105.    

- 20001203:	For unsatisfactory participation in the SMCR, Specifically, unexcused absence from Inactive Duty Training (IDT) on 20001202-20001203.    

- 20010121:	For unsatisfactory participation in the SMCR, Specifically, unexcused absence from Inactive Duty Training (IDT) on 20010119-20010121.    

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 clemency, contending that his misconduct was an isolated incident as demonstrated by his record of service prior to the misconduct and his post-service efforts since discharge.

Issue 2:  The Applicant seeks clemency, contending that he was not medically qualified for mobilization and should not have been mobilized and activated to an active duty status.

Decision

Date:  20120426	            	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.  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 21 on an eight-year reserve enlistment contract under an Infantry Option training guarantee.  The Applicant’s enlistment record further reflects this entry into military service with one waiver to enlistment and induction standards for not meeting Tier I educational requirements.  The highest rank achieved by the Applicant during his enlistment was E-2/Private First Class.  The Applicant completed 4 years and 6 months of his enlistment contract [less 228 days unauthorized absence] before being found guilty at a trial by Special Court-Martial and placed on appellate leave.  The Applicant’s enlistment contains nine retention-counseling warnings and one punitive conviction and punishment as adjudged by a Special Court-Martial on 18 December 2002.  The Applicant was subject to trial for violation of Article 86 (Absent without leave - unauthorized absence for 228 days - terminated by apprehension).  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 90 days.  The Applicant was tried in accordance with a signed Pre-Trial Agreement (PTA) in which he agreed to plead guilty to the charge as specified and accept trial by judge alone in exchange for leniency by the convening authority on matters of sentencing (no more than 30 days confinement).  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 28 December 2004.  Subsequently, the Navy Marine Corps Appellate Leave Activity ordered the Bad Conduct Discharge executed.  The Applicant’s final discharge was effected on 14 April 2005.

Issue 1: (Decisional) (Clemency)  CLEMENCY NOT WARRANTED.  The Applicant seeks clemency, contending that his misconduct was an isolated incident as demonstrated by his record of service prior to the misconduct and his post-service efforts since discharge.  The Applicant was mobilized with his reserve Infantry Battalion in support of Operation ENDURING FREEDOM on 14 Jan 2002; he subsequently deployed to Camp Lejeune, NC on 20 Jan 2002.  Less than 30 days later, on 14 Feb 2002, the Applicant absented himself from his unit, without authority; subsequently, on 14 Mar 2002, he was declared a deserter and was dropped from his unit’s roles.  Civilian law enforcement authorities apprehended the Applicant on 30 Sept 2002; he was held in civilian custody until his return to military control on 02 Oct 2002.  Upon return to his unit, the Applicant was placed in pre-trial confinement, pending adjudication of charges that were referred for trial by Special Court-Martial.  The Applicant pled guilty to the charge as agreed upon in the PTA and specified on the court-martial charge sheet.  The Military Judge found the Applicant guilty of the offense, as charged, based on the Applicant’s testimony and the facts before him and awarded him a Bad Conduct Discharge, a reduction in rank to Private/E-1, along with confinement for 90 days.
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 and discipline of the unit and the service.  Violation of Article 86 (in excess of 30 days) is one such offense, warranting processing for administrative separation, regardless of grade, combat experience, or time in service.  This action may result in an unfavorable characterization of service at discharge or, at a maximum, a punitive discharge with the possibility of confinement, if adjudicated and awarded as part of a sentence by a Special or General Court-Martial.  The Applicant contends his pre-service and post-service conduct warrants consideration.  The NDRB is authorized to consider post-service factors in the re-characterization of a discharge.  However, there is no law, or regulation, that provides that an unfavorable discharge may be upgraded based solely on the passage of time or good conduct in civilian life subsequent to leaving the service.  Normally, to permit relief, a procedural impropriety or inequity must have been found to exist during the period of enlistment in question.  The Applicant provided a personal statement, evidence of financial stability and continuous employment, educational advancement, proof of a clean criminal record since discharge, and proof of a drug-free lifestyle.  Submission of these items alone does not guarantee an upgrade from an unfavorable discharge; each discharge is reviewed by the NDRB on a case-by-case basis to determine if the post-service conduct establishes that the in-service misconduct was an aberration.  The Board determined that the documentation submitted by the Applicant, though compelling, did not overcome the misconduct of record in warranting clemency.  The NDRB determined that the characterization of service received was appropriate considering the length of service and UCMJ violations involved.  Clemency not warranted.

Issue 2: (Decisional) (Clemency)  CLEMENCY WARRANTED. The Applicant seeks clemency, contending that he was not medically qualified for mobilization and should not have been mobilized and activated to an active duty status.  The Applicant was mobilized as a member of a reserve unit activated under the authority of the Presidential Selective Reserve Call-Up.  At the time of mobilization, the Applicant was in a Fit for Duty status; as such, he was mobilized with the unit.  Upon arrival for in-processing, he presented a diagnosis from a chiropractic treatment provider, documenting that he had been diagnosed with whiplash related to an automobile accident and was being treated for the same condition.  This condition was identified and documented, but at this point, the Applicant had already been mobilized (before he arrived for in-processing) by virtue of the fact that he was fit for duty at the time the order was issued and the unit was activated.  During the mobilization process, the Applicant was advised by his unit corpsman that he would be screened and evaluated upon arrival at Camp Lejeune by the unit Medical Officer.  Six days later, after completing the unit’s mobilization and in-processing requirements to an active duty status, the unit further deployed to the gaining command at Camp Lejeune, North Carolina.  The Applicant contends that his condition of “Back Pain” was well known by the command and that he had provided numerous documents to them attesting to his condition.  However, the service record reflects that a military medical officer had not determined that the Applicant was not fit for duty or for continued service.  The Applicant’s statement of record is that “if his command did nothing to address his plea for help as a Pre-9/11 reservist, what chance did he have of receiving the promised medical assistance as a Post-9/11 activated member of the same command.”  The Applicant absented himself from the unit, without authority, 23 days after arrival at Camp Lejeune; he remained so absent until apprehension 228 days later.  By his actions, he did not afford the command the opportunity to address his situation and to determine whether he was fit for duty or warranted processing for some form of discharge resulting from his condition.

After reviewing the Applicant’s issues and supporting documentation, the evidence of record as contained in the record of trial by Special Court-Martial, and the record of service, the NDRB found that the Bad Conduct Discharge was overly harsh given the documentation of record regarding chronic upper back and neck issues, documented well before activation.  Accordingly, the NDRB determined some form of clemency in this case was warranted.  However, the NDRB considered the Applicant’s request for a change to a General (Under Honorable Conditions) discharge characterization of service to be inappropriate due to the nature of the in-service misconduct.  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.  As such, by a vote of 5-0, the NDRB awarded clemency based on equitable grounds - the characterization of service at discharge shall change from Bad Conduct Discharge to Under Other Than Honorable Conditions.  However, the NDRB determined that the narrative reason for discharge - Court Martial - was proper, was equitable, and correctly characterizes the reason for discharge and did not warrant a change.  Clemency warranted, partial relief provided.

Summary:  After a thorough review of the available evidence, to include the Applicant’s summary of service,  record entries, post service documents, the Record of Trial by Special Court-Martial, and the discharge process, the NDRB determined that some form of clemency was warranted.  Therefore, the awarded characterization of service shall  UNDER OTHER THAN HONORABLE CONDITIONS; however, 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 for additional information.

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