Title: DEPARTMENT OF THE NAVY
Author: CAP
Last saved by: joyce.meeks
Company: NCPB

Docket No. MD07-00545

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

ex-PVT, USMC
MD07-00545

Current Discharge and Applicant’s Request

Application Received:  20070308	Characterization Received:  
Narrative Reason:  AS A RESULT OF A COURT-MARTIAL    	Authority:  MARCORSEPMAN 1105

Applicant’s Request:	Characterization change to:  
			Narrative Reason change to: 
Applicant’s Issues:	1.  Discharge incorrect as I received an under other than honorable conditions discharge.

Decision

By a vote of  the Characterization shall  .	
By a vote of  the Narrative Reason shall  AS A RESULT OF COURT-MARTIAL.

Date:  20071108                   Location:  Washington D.C.	 Representation:  

Discussion

Issue 1 (Equity).   When a Marine is found guilty and sentenced to a bad-conduct discharge at court-martial, the Convening Authority (usually the Marine's Commanding Officer) must take action on the sentence.  If the Convening Authority approves the bad-conduct discharge, the case is automatically sent to the Navy-Marine Corps Court of Criminal Appeals in Washington, DC, for review.  While that review is taking place, the Marine can be placed in an "appellate leave" status, and be sent home.  His service records are transferred to a new unit, the Navy-Marine Corps Appellate Leave Activity (NAMALA), also located in Washington, DC.  In this appellate leave status, the Marine is not yet discharged from the Marine Corps, and NAMALA is his "unit."  Only when, and if, the appellate review process is complete and the bad-conduct discharge is upheld on appeal can the bad-conduct discharge be put into effect, and a DD 214 be created and sent to the Marine.  This process normally takes months, and sometimes years, depending on the difficulty of the case and the number of appeals under review.  

With respect to a discharge adjudged by a court-martial case, the action of the NDRB is restricted to upgrades based on clemency (leniency).  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 case was considered under the pertinent standards of equity to determine if any factors in this particular case merited clemency.  The reason for discharge, convicted by special court-martial, is absolutely appropriate.  However, 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.  After a thorough review of the Applicant’s record, issues submitted, and the standards of discipline, the Board determined that clemency was not warranted.

Summary of Service

Prior Service:
Inactive: USMCR (DEP)  920731 - 19920913        
Period of Service Under Review:
Date of Enlistment:  19920914   	Years Contracted:  4; Extension:  	Date of Discharge:  19970710
Length of Service:  04 Yrs   08 Mths   23 Dys	Lost Time:  Days UA:    Days Confined:  34
Education Level:  GED	Age at Enlistment:  19	AFQT:  52	MOS:  0311       Highest Rank:  LCPL
Proficiency/Conduct marks (# of occasions):	3.8(9) / 3.7 (9)	 
Awards and Decorations (per DD 214):  NDSM, SSDR, RIFLE EXPERT BAGDE       

Medical/Service Record Entries Related to Characterization of Service or Basis for Discharge

19940228:	MARCORSEPMAN 6105 counseling for financial irresponsibility and uttering worthless checks.  Discharge warning issued.

19940428:	NJP -- Viol UCMJ Art. 123a – Three checks totaling $660.00.
	Restr for (14 days); Extra duties (14 days).

19940428:	MARCORSEPMAN 6105 counseling for financial irresponsibility and uttering worthless checks.  Discharge warning issued.

19940602:	MARCORSEPMAN 6105 counseling for loss of ID and meal card due to negligence.  

19941221:	MARCORSEPMAN 6105 counseling for repeated financial iirresponsibilities, tardiness and insubordination toward your Fire team leader.  Discharge warning issued.

19950203:	NJP -- Viol UCMJ Art. 86 - two failure to go charges, Art. 92 - failure to obey an order, Art 134 - making and uttering 8 worthless checks. 
	Awarded - FOP ($223) for (2 months) suspended for 6 months; RIR (E-2); Restr for (45 days); Extra duties (45 days).

19950215:	MARCORSEPMAN 6105 counseling for lack of discipline and extremely poor conduct dealing with money.    Discharge warning issued.

19950621:	MARCORSEPMAN 6105 counseling for inability to be at your appointed place of duty on time.  Discharge warning issued.

19950630:	NJP imposed and suspended on 19950203 is vacated.

19940630:	NJP -- Viol UCMJ Art. 86 – failure to go, late by 34 minutes.
	Awarded - RIR (E-1); Restr for (30 days); Extra duties (30 days).

Bad Conduct Discharge

Discharge Process

Charge(s) and Specification(s):  Article 112a.
Preferred:  19950811	Court-martial:  19950927	Findings:  Guilty of Article 112a.        
Sentence:  BCD; Confinement for 2 months.           CA action:  19951106
NC&PB Action:  NONE    Clemency:    				
Appellate Review Complete:  19960710       	BCD ordered executed:  19970710  SSPCMCO No.  20-95     
Applicant Discharged:  19970710
     

Types of Documents Submitted by Applicant and Considered By Board

Related to Military Service:	Service and/or Medical Record:  		Other Records:  

Related to Post-Service Period:  	
	Employment:  			Finances:  			Education: 		
	Health/Medical Records:  		Substance Abuse:			Criminal Records:  	
	Family/Personal Status: 		Community Service:  		References:  		
	
Additional Statements From Applicant:  	From Representative:    
Other Documentation (Describe)       

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 950818 until 010831. 

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.  The Manual for Courts-Martial authorizes the award of a punitive discharge if adjudged as part of the sentence upon conviction by a special or general court-martial for violation of the UCMJ, Article(s) 92 and 112a.

ADDENDUM:  Information for the Applicant

Complaint Procedures:  If you believe that 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:  Subsequent to a document review, former members are eligible for a personal appearance hearing, provided the application is received at the NDRB within 15 years from the 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.  If a former member has been discharged for more than 15 years, has already been granted a personal appearance hearing or has otherwise exhausted his 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 Veterans Administration determines eligibility for post-service benefits, not the Naval Discharge Review Board.  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 Board has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities.  Regulations limit the Board’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 Board for Correction of Naval Records (BCNR) can make changes to reenlistment codes.  Additionally, the Board 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 subsequently is processed for an administrative involuntary separation for misconduct, the disability evaluation is suspended.  The Physical Evaluation Board case remains in suspense pending the outcome of the non-disability proceedings.  If the action includes either a punitive or administrative discharge for misconduct, 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 “PTSD.”  Only the Board for Correction of Naval Records can grant this type of narrative reason change.  

Automatic Upgrades - There is no law or regulation, which provides that an unfavorable discharge may be upgraded based solely on the passage of time or good conduct in civilian life subsequent to leaving Naval service.  The NDRB is authorized to consider post-service factors in the recharacterization of a discharge 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.  Examples of documentation that may be provided to the Board include proof of educational pursuits, verifiable employment records, documentation of community service, credible evidence of a substance free lifestyle and certification of non-involvement with civil authorities.  

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 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.  

Board Membership:  The names and votes of the members of the 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