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

Docket No. MD08-01161

ex-Pvt, USMC

Current Discharge and Applicant’s Request

Application Received:  20080502
Characterization of Service Received:  BAD CONDUCT DISCHARGE
Narrative Reason for Discharge:  COURT-MARTIAL
Authority for Discharge:  MARCORSEPMAN 1105 (COURT-MARTIAL)

Applicant’s Request:  Characterization change to:  HONORABLE
		       Narrative Reason change to: NONE REQUESTED

Summary of Service

Prior Service:
Inactive: USMCR (DEP)	19980227 - 19980908  COG		Active:   NONE

Period of Service Under Review:
Date of Enlistment: 19980909	Period of Enlistment:  4 Years  0 Months	Date of Discharge:  20030516
Length of Service:  04  Years  08  Months  08  Days	Education Level:  12   Age at Enlistment:  17 (PARENTAL CONSENT)
AFQT:  31	MOS:  3531	Highest Rank:  LANCE CORPORAL	Fitness Reports:  NOT APPLICABLE
Proficiency/Conduct Marks (# of occasions):	  4.0 (7) / 3.4 (7)
Awards and Decorations (per DD 214):  Rifle MM

Periods of UA/CONF:  CONF:  20010408-20010626 (80 days)

NJPs:  6
20000328:  Article 86 (Unauthorized absence), from place of duty 0415-0530, 20000316 1 hour, 15 minutes,
                   Article 92 (Derelict in performance of duties).
                   Awarded:  FOP RESTR EPD.  Suspension:  NONE

20000105:  Article 92 (Failed to obey lawful order by under age consumption of alcoholic beverages).
                   Awarded:  FOP RESTR EPD.  Suspended:  NONE.

20000921:  Article 86 (Unauthorized absence), from 1200-1710, 20000905 5 hours, 10 minutes.
                   Article 92 (Failed to obey a written order).
                   Awarded:  RIR FOP EPD.  Suspended:  NONE.

20001106:  Article 86 (Unauthorized absence), 3 specifications:
	- Specification 1: (Unauthorized absence from 0630-0645, 20001013 (15 minutes).
	- Specification 2: (Unauthorized absence from 0715-0725, 20001024 (10 minutes).
	- Specification 3: (Unauthorized absence from 0615-0640, 20001030 (20 minutes).
                    Awarded:  RIR FOP.  Suspended:  FOP.

20010207:  Article 90 (Willfully disobeyed an order) LtCol’s order not to fight.
                   Awarded:  RIR FOP RESTR EPD.  Suspended:  NONE.

20010313:  Article 86 (Unauthorized absence), from appointed place of duty 0030-0705, 20010304 6 hours, 35
                    minutes.
                  Article 90 (Willfully disobeyed an order), Lt Col’s order not to leave the confines of his room.
                  Awarded:  FOP RESTR EPD.  Suspended:  NONE.

SCMs:	NONE

Period of Service Under Review (cont):

SPCMs:	 1
20010627:  Article 86 (Unauthorized absence), from unit 20010405-20010408 (3 days)
                   Article 91 (Willfully disobeyed order)
                   Article 128 (Assault), Unlawfully grabbed L. S. by the arm, picked her up and threw her across a bed into
                   a night stand.
                   Sentence:  BCD CONF 120 DAYS.
                   CA Action (20020207):  Sentence approved as adjudged.

CC:	1
20001228:  Offense:  Criminal domestic violence.
                    Sentence:  Fine $1025.  Fine suspended for 6 months.

6105 Counseling: 2
20000328:	For failure to conform to Marine Corps standards, specifically my recent NJP for violations of Article(s) 86 and 92; of the UCMJ.

20001004:	For my pattern of misconduct.  Specifically, my continued disregard of Article 86, Unauthorized absence/Absent without leave, and Article 92, failure to obey an order or regulation, which has resulted in two nonjudicial punishments and one formal counseling entry this year.  Additionally, I received nonjudicial punishment earlier in the year for underage drinking.  I have been advised and understand that any further infractions of the UCMJ will not be tolerated and the consequences will be severe.

Types of Documents Submitted/reviewed

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

	- Record of Trial from 21 June 2001

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):  ☐

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 1 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.  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.

D.  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, Articles 86, 90, 92, and 128. 

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

Applicant’s Issues

1.  Would like his Bad Conduct Discharge upgraded to Honorable based on Post Service.
2.  Youth and immaturity.

Decision

Date:  20080918  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: (Clemency)  RELIEF NOT WARRANTED.  The Applicant is asking for clemency and an upgrade of his characterization of service from a “Bad Conduct Discharge” to “Honorable” based on his post service accomplishments since his 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.  The Applicant’s record of service was marred by six non-judicial punishments, a Special Court Martial conviction and two formal retention warning counseling’s for violations of the Uniform Code of Military Justice (UCMJ): Article 86 (UA); Article 90 (Willful disobedience of a lawful order); Article 92 (Failure to obey order/regulation); and Article 128 (Assault), and a Special Court Martial conviction.   The Applicant received a “Bad Conduct Discharge” as a result of a conviction at a Special Court-Martial on 27 June 2001.  The Applicant regrets his earlier misconduct and states he is now a married man with two children and an ordained minister under the Grace Christian Fellowship.  He is pursuing his Bachelor of Arts degree in Christian Studies.  He submits a license from the Grace Cathedral Christian Fellowship and one letter of reference, signed by Bishop Sammy Smith, also of the Grace Cathedral Ministries.  

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.  While the Board applauds the Applicant for being married and pursuing a degree in Christian Studies to warrant an upgrade to “Honorable” the efforts need to be more encompassing.  The Applicant did not provide sufficient supporting documentation of post service accomplishments or character witness statements to support his request for an upgrade.  For example, the Applicant could have produced evidence of a verifiable employment record; documentation of community/church service; marriage license; birth certification or his children, certification of non-involvement with civil authorities, evidence of financial stability, additional statements from other than church related references and a copy of his college transcripts.  The Board determined clemency based on post service accomplishments would be inappropriate. 

Issue 2:  (Clemency)  RELIEF NOT WARRANTED.  The Applicant feels his misconduct was due to youth and immaturity.    While he may feel this was the underlying cause of his misconduct, the evidence of record does not demonstrate the Applicant was not responsible for his conduct or that he should not be held accountable for his actions due to youth or immaturity.  The Applicant does not submit any evidence to show he was not culpable for his misconduct.  

When the quality of a member’s service has met the standards of accepted conduct and performance of duty for military personnel, it is appropriate to characterize that service under “Honorable” conditions.  Based on nature and frequency of the UCMJ violations, and the conviction by a Special Court-Martial the Applicant’s conduct and performance falls well below the accepted standards for U.S. Marines and the Board determined an upgrade would be inappropriate.  

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

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 or is referred to a court-martial 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 other medical related reasons.”  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 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 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