Title: DEPARTMENT OF THE NAVY
Author: CAP
Last saved by: janet.goode
Company: NCPB

Docket No. MD07-00826

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

ex-, USMC
MD07-00826

Current Discharge and Applicant’s Request

Application Received:  20070604 				Characterization Received:   DISCHARGE
Narrative Reason:  COURT-MARTIAL 	Authority:  MARCORSEPMAN 1105

Applicant’s Request:	Characterization change to:   
			Narrative Reason change to: RE ENTRY CODE/CHARACTER OF SERVICE
Applicant’s Issues:	1.  Clemency

Decision

By a vote of  the Characterization shall   DISCHARGE.
By a vote of  the Narrative Reason shall  COURT-MARTIAL.

Date:  20071220		Location:  Washington D.C.	 Representation:  

Discussion

Issue 1 (Clemency).  Per regulation, when an Applicant does not specify a characterization of service requested, the NDRB presumes that it is a request for an “honorable” characterization of service.  Relevant and material facts stated in a court-martial specification are presumed by the NDRB to be established facts.  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 claims that he wants to rejoin to make his “past mistakes right,” and “help out in the current Iraq situation.”  The Applicant claimed that his misconduct was due to his youth and immaturity, his ex-wife’s pressure to get out of the service, and his failing to think of the long-term consequences of his actions.  The Applicant claims to have corrected his mistakes, to live his right life, to be more mature, and to have received OSHA certification, a concealed handgun license from the State of Oregon, and to have taken an NRA firearms safety course.  The Board noted that that the Applicant went to unauthorized absence when he failed to return from his unit’s pre-deployment leave, that he used marijuana twice after returning from unauthorized absence, and that he specifically requested a bad conduct discharge having been fully advised of the negative consequences of such a discharge. After a thorough review of the Applicant’s record, issues submitted, and claimed post service accomplishments, the Board determined that discharge awarded the Applicant at his court-martial was appropriate for the offenses he committed.  

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.  After a thorough review of the available evidence, to include the Applicant’s Summary of Service, Medical and Service Record Entries, Discharge Process and evidence submitted by the Applicant, the Board found that  

Summary of Service

Prior Service:
Inactive: USMCR (DEP)	19990614 - 20000611  		Active:   	
Period of Service Under Review:
Date of Enlistment: 20000612		Years Contracted:  ; Extension:  		Date of Discharge:  20040227
Length of Service:  03  Yrs  08  Mths  16  Dys			Lost Time:  Days UA:  63  Days Confined:  48	
Education Level:  	Age at Enlistment:  	AFQT:  45     MOS:  0311       Highest Rank:  
Proficiency/Conduct marks (# of occasions):	3.9(4)/3.1(5)	Awards and Decorations (per DD 214):  Rifle 

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

None.

Discharge Process

Charge(s) and Specification(s):  Article 86 (2 specs), UA 20010628 - 20010930;
			        Article 112a (2 specs), Use marijuana 20011029 and 20011114.
Preferred:  20011108 and 20011127	Court-martial:  20011203	Findings:  Guilty of Article(s) 86, 112a
Sentence:  BCD; Conf 110 days; RIR E-1; FOP  $600.00 x 3; Other:  NONE 	 		CA action:  20020805
NC&PB Action:  				Appellate Review Complete:  20030908
BCD ordered executed:  20040225 SSPCMCO No. 04-0230				Applicant Discharged:  20040227

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 P1900.16F), effective 01 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.  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 86, Absence without leave (for more than 30 days); and 112a, Wrongful use, possession, etc., of controlled substances.

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