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

Docket No. MD08-00546

ex-Pvt, USMC

Current Discharge and Applicant’s Request

Application Received:  20080129
Characterization of Service Received:  BAD CONDUCT DISCHARGE
Narrative Reason for Discharge:  COURT-MARTIAL
Authority for Discharge:  MARCORSEPMAN 1105 (discharge adjudged by sentence of court-martial)

Applicant’s Request:	Characterization change to:  GENERAL (UNDER HONORABLE CONDITIONS)
			Narrative Reason change to: NONE REQUESTED

Summary of Service

Prior Service:
Inactive: USMCR (DEP)	19970930 - 19971026  COG		Active:   USN  19971027 - 20020423  HON	
Period of Service Under Review:
Date of Enlistment: 20020424		   Period of enlistment:  3 Years  0 Months		Date of Discharge:  20061114
Length of Service:  04  Yrs  06  Mths  21  Dys	Education Level:  12	Age at Enlistment:  23	AFQT:  32
MOS:  7212  	Highest Rank:  LANCE CORPORAL 			Fitness reports:  NOT APPLICABLE
Proficiency/Conduct marks (# of occasions):	NFIR NFIR
Awards and Decorations (per DD 214): Rifle EX NDSM GCM 

Period of CONF:  20031028-20040109 (72 DAYS)

NJPs:	3
	20020717:  Art(s) 86 (Unauthorized absence); 92 (Failure to obey an order or regulation).  
                                 Awarded - FOP RESTR EPD   Susp - RESTR EPD
	20021018:  Art(s) 86.  Awarded - FOP RESTR EPD RIR  Susp - FOP RIR RESTR EPD
20030506:  Art(s) 112a (Wrongful use of a controlled substance) 2 specifications.  
                   Awarded - RIR FOP RESTR EPD  Susp - FOP 

SPCMs:	1
	20031028:  Art(s) 112a (3 specs).  Sentence - BCD; CONF, FOP.

6105 Counseling: 11
	20020729:  For recent NJP on 200210717? for Article 92 and Article 86. 
20021002:  For failure to obey order or regulation.
20021025:  For receiving NJP on 20021018 for the following violation of the UCMJ, violation of 86, unauthorized absence. 
20021025:  For assignment to the Body Fat Composition Program (BCP). 
20021005:  For failure to obey or regulation.
20021107:  For being dropped from the Stinger Avenger Crewman Course due to the disciplinary actions.
20021230:  For failure to be at appointed place of duty as ordered.
20030204:  For pattern of misconduct.
20030422:  For use of an illegal substance (amphetamines).
20030429:  For wrongful possession of a controlled substance.
20040102:  For refusal of drug treatment. 

Types of Documents Submitted

Related to Military Service:	DD 214:  ☒	Service and/or Medical Record:  ☐		Other Records:  ☐

Related to Post-Service Period:	
	Employment:  		☒	Finances:  		☐	Education/Training:	☐
	Health/Medical Records:	☐	Substance Abuse:		☐	Criminal Records:	☐
	Family/Personal Status: 	☐	Community Service:  	☐	References:  		☒
	
Additional Statements From Applicant:  ☒		From Representation:  ☐		From Member of Congress:  ☐
Other Documentation (Describe) ☒ 2 Letters from BCNR

Administrative Corrections to the Applicant’s DD 214

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

	Block 18, Remarks, should contain the statement: “CONTINUOUS ACTIVE SERVICE 19971027-20020423”

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

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

1. Requesting upgrade of reentry code.
2. Post service.
Decision
Date:  20080516	DOCUMENTARY REVIEW	Location:  Washington D.C.	 Representation:  NONE

By a vote of 5-0 the Characterization shall remain BAD CONDUCT.
By a vote of 5-0 the Narrative Reason shall remain COURT-MARTIAL.

Discussion
Issue 1.  The Applicant is requesting an upgrade /clemency so he can return to the military.  This is an Issue which the Board does not have the authority to grant the relief for which the Applicant petitioned.  The Applicant is directed to the Addendum for additional information regarding Reenlistments/RE Codes.

Issue 2 (Equity).  The Applicant submitted several reference letters from relatives, long term friends and an employer as evidence of post service accomplishments.  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.  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’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 and statements submitted by the Applicant did not contain sufficient mitigating or extenuating factors to offset the seriousness of the offense for which the discharge was awarded.  In addition, the reason for discharge, convicted by special court-martial, is most appropriate.  Therefore, the Board determined relief is not warranted.

After a thorough review of the available evidence, to include the Applicant’s Summary of Service, Service Record, Discharge Process and evidence submitted by the Applicant, the Board found the discharge was proper and equitable.

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 II, Para 211, Regularity of Government Affairs, Part V, Para 502, Propriety and Para 503, Equity.

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

Key:	NFIR - Not Found In Record 	UA – Unauthorized absence	NJP – Nonjudicial punishment	SCM – Summary court-martial
	SPCM – Special court-martial	FOP – Forfeiture of pay	RIR – Reduction in rank	EPD – Extra Duties
	CONF – Confinement		B&W – Confinement on bread and water			CC - Civilian conviction

Key:	NFIR - Not Found In Record 	UA – Unauthorized absence	NJP – Nonjudicial punishment	SCM – Summary court-martial	
	SPCM – Special court-martial	FOP – Forfeiture of pay	RIR – Reduction in rank	EPD – Extra Duties 
	CONF – Confinement		B&W – Confinement on bread and water