ex-, USMC

Current Discharge and Applicant’s Request
Application Received:  20090930
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)	19931217 - 19940705  	Active:	

Period of Service Under Review:
Date of Current Enlistment:  19940706	Age at Enlistment:  
Period of Enlistment:   Years   Months
Date of Discharge:  19990823	Highest Rank:  
Length of Service:    Year(s)    Month(s)  18  Day(s)
Education Level:  	AFQT:  47
MOS:  2531
Proficiency/Conduct Marks (# of occasions):   () /  ()	Fitness Reports:  
Awards and Decorations (per DD 214):	Rifle   

NJP:  
- 19960612:	Article  (Checks, insufficient funds, intent to deceive)
	Awarded:     Suspended:     
	Suspension vacated 19960628

- 19960628:	Article  (Dishonorably failed to pay debt)
	Awarded:    Suspended:  

- 19970326:	Article  (UA 0801, 19970317-1300, 19970324, 7 days)
	Awarded:     Suspended:    
                      	Suspension vacated 19970429

SCM:  

SPCM:  
- 19971212:	Article  (UA 19970527-19970903, 97 days)
	Article 87 (Miss unit movement on 19970728)
	Sentence:  60 days (19971212-19980130, 50 days)  

CC:  

Retention Warning Counseling:  3
- 19960508:	For issuing checks without sufficient funds available.  Showing poor financial responsibility.

- 19960628:	For breaking restriction and dishonorably failing to pay just debt (Suspension of Reduction in Rank from NJP held 19960612, revoked and punishment ordered executed).

-19970508: 	Discharge proceeding submitted to Commanding General recommending administrative separation for Misconduct due to a pattern of misconduct with a recommendation for characterization of service as Under Other Than Honorable Conditions.  Approved by Commanding General on 19970527 recommending Applicant’s separation.  

Administrative Corrections to the Applicant’s DD 214

The NDRB did note administrative error(s) on the original DD Form 214:

	  “COURT-MARTIAL”

The NDRB will recommend to the Commandant of the Marine Corps that the DD 214 be corrected as appropriate.

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 P1900.16E), effective 18 August 1995 until 31 August 2001.

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.  Paragraph 6210, MISCONDUCT, of the Marine Corps Separation and Retirement Manual, (MCO P1900.16E), effective 31 January 1997 until 31 August 2001.

D.  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.	The Applicant contends that he suffers from bi-polar disorder, diagnosed post-service, which was the cause of his behavior and unauthorized absence in service and as mitigating circumstance, seeks upgrade to characterization of service and a change in narrative reason for separation to a medical separation.  

Decision

Date:  20101022		Location: Washington D.C.	 Representation: 

By a vote of  the Characterization shall  .
By a vote of  the Narrative Reason shall  .

Discussion

The Applicant identified one decisional issue to the Board.  The Board completed a thorough review of the circumstances that led to the Applicant’s discharge, and the discharge process, to ensure that the discharge met the pertinent standards of equity and propriety.  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.

The Applicant’s record of service included  6105 counseling warnings for minor misconduct and  nonjudicial punishments (NJPs) for  of the Uniform Code of Military Justice (UCMJ): 

•	Article 86 (Absent without leave – Absent from his unit without authority from 970317 to 970324 (7 days))
•	Article 123a (Uttering worthless checks with an intent to deceive) and, 
•	Article 134 (General Article – Failure to pay just debt and breaking restriction).  

Given the established pattern of misconduct by the Applicant, his command recommended administrative separation for his Misconduct pursuant to paragraph 6210 of the Marine Corps Separation and Retirement Manual (MARCORSEPMAN).  On 08 May 1997, the Applicant was notified of this recommendation; he waived his right to seek counsel, to include written matters to the Separation Authority, and further waived his right to an administrative separation hearing board.  On 08 May, the command forwarded its recommendation to the Separation Authority, recommending the Applicant be separated for his established pattern of misconduct and that the characterization of his service at separation be Under Other Than Honorable Conditions.    

On 27 May 1997, the Separation Authority approved the command recommendation and directed that the Applicant’s separation for Misconduct (pattern of misconduct) with a characterization of service of Under Other Than Honorable Conditions.  However, prior to being notified and separation being initiated, the Applicant absented himself from his assigned unit, without authority.  The Applicant was declared a deserter after 30 days of absence and was dropped from the unit roles.  On 04 Sept 1997 the Applicant surrendered himself back into military custody.  Based on the Applicant’s continued misconduct after notification of separation proceedings, the command opted to refer the charge of violating Article 86 and 87 of the UCMJ to a Special Court-Martial.    
 
The Applicant was tried on 12 December 1997 by a Special Court-Martial composed of a military judge alone.  Pursuant to the Applicant’s pre-trial agreement, he pled guilty and was convicted of unauthorized absence and missing his unit movement in violation of Article 86 and Article 87 of the UCMJ.  The Applicant was sentenced to a Bad Conduct discharge and 60 days confinement and received a forfeiture of pay.  The Special Court-Martial was approved by the convening Authority and was further reviewed and upheld as correct in law and fact with no materially prejudicial errors by the U.S. Navy-Marine Corps Court of Criminal Appeals.

:  (Decisional) ()  .  The Applicant contends that he suffers from bi-polar disorder, diagnosed post-service, which was the cause of his behavior and unauthorized absence in service and as a mitigating circumstance, he seeks upgrade to his characterization of service and a change in narrative reason for separation to a medical separation.  

In reviewing discharges, the Board 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.  The Applicant provided no documentary evidence other than his personal statement.  With respect to a discharge adjudged by a court-martial case, the action of the NDRB is restricted to upgrades based on clemency.  The government enjoys a presumption of regularity in the conduct of its affairs.  When reviewing a discharge, the NDRB does consider the extent to which a medical problem might have affected an Applicant’s performance or his ability to conform to the military’s standards of conduct and discipline.  A purported diagnosis of bi-polar disorder, 6 years after separation, is not, in itself, mitigation of the Applicant’s misconduct.  While the Applicant may feel that this diagnosis was the underlying cause of his misconduct, the record clearly reflects willful misconduct that demonstrated he was unfit for further service.  Upon review of the Applicant’s service record, there are no indications of any mental health concerns or any diagnosis of personality disorders that would render the Applicant incapable of serving adequately in the Naval Service or that were interfering with his ability to perform his duties.  Additionally, the Applicant indicated in his unsworn statement to the Military Judge at his trial that he simply did not care about his obligations to the Marine Corps following his personal setbacks.  The evidence of record from the trial by court martial clearly shows that the Applicant was responsible for his conduct and that he should be held accountable for his actions.   

The Applicant’s case was considered under the pertinent standards of equity to determine if any factors in this particular case merited clemency.  The NDRB found the evidence of record did not contain sufficient mitigating or extenuating factors to offset the seriousness of the offenses for which the discharge was awarded.  The reason for discharge, conviction by Special Court-Martial, was appropriate.  Furthermore, the discharge characterization of service was considered appropriate due to the nature of the willful and repetitive in-service misconduct.  As such, the Board determined that clemency was not warranted in this case.  

Summary:  After a thorough review of the available evidence, to include the Applicant’s summary of service,  record entries, and discharge process, the Board found   Therefore, the awarded characterization of service shall   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, Automatic Upgrades, 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