ex-PVT, USMC
MD07-01118

Current Discharge and Applicant’s Request

Application Received:  20070810      	Characterization Received:  BAD-CONDUCT DISCHARGE
Narrative Reason:  COURT-MARTIAL        Authority:  MARCORSEPMAN 1105      

Applicant’s Request:	Characterization change to:  
			Narrative Reason change to: 
Applicant’s Issues:	1.  Employment opportunities.
2.  Clemency.
			3.  Post service.

Decision

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

Date:  20080117    		Location:  Washington D.C.	 Representation:  

Discussion
:   either  which the Board cannot form the basis of relief for the Applicant, or  the Board does not have the authority to grant the relief for which the Applicant petitioned.  The Applicant is directed to the Addendum regarding .

Issue 2 (Equity).  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 also found the evidence of record did 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, the standards of discipline, post service accomplishments, and time passed since the BCD, the Board determined that some degree of clemency was warranted.  While the Applicant’s request for an general (under honorable conditions) discharge was considered inappropriate due to the nature of his in-service conduct, the board did find that an upgrade from Bad-Conduct Discharge to an Under Other Than Honorable Conditions discharge to be most appropriate.

Issue 3 (Equity).   The NDRB is authorized to consider post-service factors in the recharacterization of a discharge.  However, 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 the civilian life subsequent to leaving the service.  Normally, to permit relief, a procedural impropriety or inequity must have been found to have existed during the period of enlistment in question.  Outstanding post-service conduct, to the extent that 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.  The Applicant provided two certificates of achievement as documentation of post service accomplishments. The Applicant's efforts need to be more encompassing.  For example, the Applicant could have produced evidence of a verifiable and continuous employment record, documentation of community service, and certification of non-involvement with civil authorities, and evidence of a drug free lifestyle.  The Board determined that the documentation provided by the Applicant did not mitigate the misconduct that resulted in the characterization of discharge.   

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)	19981130 - 19990711  		
Period of Service Under Review:
Date of Enlistment: 19990712		Years Contracted:  ; Extension:  		Date of Discharge:  20030404
Length of Service:    Yrs    Mths  21  Dys			Lost Time:  Days UA:  4  Days Confined:  28
Education Level:  	Age at Enlistment:  	AFQT:  44	MOS:  0311  Highest Rank:  LCPL
Proficiency/Conduct marks (# of occasions):	4.2(7) / 4.1(7) 
Awards and Decorations (per DD 214):  SSDR, MM, RIFLE SS  

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

19981129:	Applicant signed Marine Corps policy concerning illegal use of rugs.  Applicant receives pre-service waiver for THC use.

20000718:	NJP -- Viol UCMJ Art. 86 (4 days).
	Awarded - FOP ($263) for (1 month);Restr for (14 days); Extra duties (14 days).

20010323:	MARCORSEPMAN 6105 counseling for underage consumption of alcohol.  Discharge warning issued.

20010328:	NJP -- Viol UCMJ Art. 92, underage drinking.
	Awarded -Restr for (7 days); Extra duties (7 days).

20010716:	NAVDRUGLAB, , reported Applicant’s urine sample, received 20010710, tested positive for ().

20010725:	MARCORSEPMAN 6105 counseling for use of illegal drugs (THC).  Being administratively discharged.  

20010725:	NJP -- Viol UCMJ Art. 112a.
	Awarded - FOP ($584) for (2 months); RIR (E-2); Restr for (45 days); Extra duties (45 days).

20011016:	NJP -- Viol UCMJ Art. 91, 92, 107, 134.
	Awarded - FOP ($521) for (2 months); RIR (E-1); Restr for (45 days); Extra duties (45 days).

Discharge Process

Date Notified:	20010726
Basis for Discharge:	 DUE TO 
	
Least Favorable Characterization:	
Commanding Officer’s Intended Recommendation:	

Date Applicant Responded to Notification:		20010726     
Rights Elected at Notification:
	Consult with Counsel			
	Obtain Copies of Documents		
	Submit Statement(s) (date)			  
	Administrative Board			

Commanding Officer Recommendation (date):	 (20010725)
SJA review (date):	 (20011002)
Separation Authority (date):	COMMANDING GENERAL, 1ST MARINE DIVISION (20011002)
              Basis for discharge directed:	 DUE TO 
              Characterization directed:	
Date Applicant Discharged:	     

              Bad Conduct Discharge

Discharge Process

Charge(s) and Specification(s):  Article 112a.
Preferred:  20011106	Court-martial:  20011129	Findings:  Guilty of Article 112a      
Sentence:  BCD; Conf 60 days; FOP ($695) for (2 months).        	 	CA action:  20020703
NC&PB Action:  NONE 	     Appellate Review Complete:  20021025	    BCD ordered executed:  20030324             SSPCMCO No. 112-02
Applicant Discharged:  20030404

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(s) 91, 92, 107 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