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

Docket No. MD08-01947

ex-, USMC

Current Discharge and Applicant’s Request

Application Received:  20080923
Characterization of Service Received:  
Narrative Reason for Discharge:  
Authority for Discharge:  MARCORSEPMAN 

Applicant’s Request:  Characterization change to:  
		       Narrative Reason change to:  

Summary of Service

Prior Service:
Inactive: USMCR (DEP)	19910701 - 19920622  	Active:	 19920623 – 19951024   HON

Period of Service Under Review:
Date of Enlistment:  19951025	Age at Enlistment:  
Period of Enlistment:   Years   Months
Date of Discharge:  20001103	Highest Rank:  
Length of Service:    Years    Months   04  Days
Education Level:  	AFQT:  35
MOS:  0311, 8411
Proficiency/Conduct Marks (# of occasions):  4.9 () / 4.9 ()	Fitness Reports:  
 
Awards and Decorations (per DD 214):	Rifle (3)   (2)   (2)  (2)    JMUC(2) MM CoC

Periods of UA:  UA 19981020-19981023(4 days)

NJP:  
- 19980713:  Article 86 (UA), absence from unit 19980627 (4 hours)
                     Article 91 (Contempt and disrespectful in language to a Staff Non-commissioned officer (19980708)), 2
                     specifications 
                     Awarded:   Suspended:  

SCM:      CC:  

SPCM:  

- 19981120:	Article 86 (UA) 19981013 – 19981015 (2 days)
	Article 92 (Violated a lawful general order, by wrongfully conducting financial dealings with prospective recruit applicants)
	Article 112a (Drug use, wrongful use of controlled substances, cocaine, marijuana, and heroin)
	Sentence:  BCD; CONF 75 days 19981030-19981204(35 days), forfeit $600.00 pay per month for a period of four months, and RIP to E-1. 
	CA action sentence is approved and except for the part of the sentence adjudging confinement for a period of 75 days is suspended to 45 days.

Retention Warning Counseling:  

- 19980413:	For deficiencies in performance and/or conduct on 980407, were disrespectful to a senior SNCO.

Types of Documents Submitted/reviewed

Related to Military Service: 
              DD 214:  	                            Service/Medical Record:             Other Records:  
	
		- Record of trial dated 19981120

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 Congress member:    

                    Other Documentation:  

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 18 August 1995 until 31 August 2001.

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 91, Article 92, and Article 112a.

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

Applicant’s Issues

1.  Excessive punishment.
2.  Mitigating circumstances.
3.  Record of service.
4.  Post-service conduct.
5.  Applicant was coerced into signing his pre-trial agreement.

Decision

Date:  20090129		Location: Washington D.C.	 Representation: 

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

Discussion

:  ()  .  The Applicant contends he is entitled to clemency due to excessive punishment at his Court-Martial, mitigating circumstances which lead to his misconduct, and his record of service.  Specifically, the Applicant contends family troubles and lack of command support mitigate his misconduct.  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 Applicant’s record of service was marred by  one retention warning, one NJP, and one SPCM for violations of the Uniform Code of Military Justice (UCMJ): Article 86 (UA); Article 91 (Disrespect toward a superior noncommissioned officer); Article 92 (Disobeying a lawful order); and Article 112a (Drug use, wrongful use or possession of a controlled substance).  The NDRB determined these Issues were all properly considered by the Court-Martial and again during subsequent reviews by higher courts.  The NDRB determined clemency was not warranted.

:  ()  .   The Applicant contends he is entitled to clemency due to post-service conduct.  The NDRB is authorized to consider post-service factors in the recharacterization of a discharge.  However, there is no law or regulation, which provides 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.  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 during Board reviews.  Documentation to help support a post service conduct upgrade includes, but is not limited to: a verifiable continuous employment record; marriage and children’s birth certificate (if applicable); character witness statements; documentation of community or church service; certification of non-involvement with civil authorities; evidence of financial stability or letters of good standing from banks, credit card companies, or other financial institutions; and documentation of a drug-free lifestyle.  The Applicant is advised that completion of these items alone does not guarantee the upgrade of an unfavorable discharge, as each discharge is reviewed by the Board on a case by case basis to determine if post-service accomplishments help demonstrate previous in-service misconduct was an aberration and not indicative of the member’s overall character. 

The Applicant submitted a statement he owns his own business. To warrant clemency the Applicant’s post service efforts need to be more encompassing and documented.  The Applicant could have produced additional evidence as stated in the above paragraph with the full understanding completion of these items alone does not guarantee clemency. The Board determined the characterization of service received, “Bad Conduct”, was an appropriate characterization considering the length of service and the numerous UCMJ violations involved, and based on the lack of post service documentation provided clemency is not warranted.
 
:  ()  . The Applicant contends clemency is warranted because he was coerced into signing a pre-trial agreement before his Court-Martial. The record of evidence clearly shows the Applicant signed his pre-trial agreement on 12 November 1998 which states, in part “…That this offer to plead guilty originated with me and my counsel; that no person or persons whomsoever have made any attempt to force or coerce me into making this offer of pleading guilty…”.  The NDRB rejects the Applicant’s contention as without merit and is contradicted by evidence in the record.  The Board determined clemency was not warranted. 

The Applicant also states in his DD-293 Application he is unable to get a copy of his DD-214 and his DD-214 contains numerous unspecified errors.  For the edification of the Applicant, he can request a copy of his Official Military Personnel File by visiting https://www.mmsb.usmc.mil  or calling (703) 784-3930.  Corrections to official records not relating to discharges can be requested by petitioning the Board for Correction of Naval Records (BCNR). Information regarding the application process can be found on-line at http://www.donhq.navy.mil/bcnr/bcnr.htm.

After a thorough review of the available evidence, to include the Applicant’s Summary of Service, Service and Medical Record Entries, Discharge Process and evidence submitted by the Applicant, the Board found clemency was not warranted and the sentence awarded the Applicant at his court-martial was appropriate for the offenses he committed. 

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 	CC - Civilian conviction	B&W – Confinement on bread and water

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