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

Docket No. MD09-00356

ex-Pvt, USMC

Current Discharge and Applicant’s Request

Application Received:  20081203
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:  GENERAL (UNDER HONORABLE CONDITIONS)
		       Narrative Reason change to:  NONE REQUESTED

Summary of Service

Prior Service:
Inactive:	USMCR (DEP)	19960917 - 19970121  COG	Active:	NONE

Period of Service Under Review:
Date of Enlistment:  19970122	Age at Enlistment:  19
Period of Enlistment:  4 Years  0 Months
Date of Discharge:  20011017	Highest Rank:  LANCE CORPORAL
Length of Service:  04  Year(s)  08  Month(s)  26  Day(s)
Education Level:  13	AFQT:  59
MOS:  1341
Proficiency/Conduct Marks (# of occasions):  4.5 (3) / 4.5 (3)	Fitness Reports:  NOT APPLICABLE

Awards and Decorations (per DD 214):	Rifle MM MUC

Periods of UA:  19981005-19981026 (21 days)
            CONF:  19981026-19981030 (4 days);  19990329-20000303 (340 days : IHCA + USMC)
            
NJP:  NONE   SCM:  NONE   Retention Warning Counseling:  NONE

SPCM:  1
- 19990429:	Article 86 (Unauthorized absence)
	Article 134 (Threat, communicating)
		Sentence:  BCD CONF FOR 100 DAYS FOP RIR TO E-1

CC:  1
           - 19990218:  That Christopher R. Conway was found GUILTY on two counts for the crimes of CHILD MOLESTING and LEWD ACT UPON A CHILD that occurred on or about 31 March, 1998 in a Superior Court of the State of California for the County of San Diego.

Types of Documents Submitted/reviewed

Related to Military Service: 
              DD 214:  ☒	                            Service/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 Congress member:    ☐
                    Other Documentation:  ☐

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

Applicant’s Issues
1.  Service benefits
2.  Discharge improper and unjust.

Decision

Date:  20090507	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:   This is either an Issue which the Board cannot form the basis of relief for the Applicant, or one the Board does not have the authority to grant the relief for which the Applicant petitioned.  The Applicant is directed to the Addendum, specifically the paragraph concerning Service Benefits, regarding this Issue.

Issue 2:  (Clemency)  RELIEF NOT WARRANTED.  The Applicant contends his discharge was unjust because he was sent to a SPCM for a charge where there was no evidence against him and the JAG used the Applicant’s prior civilian conviction against him at his hearing.  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 a SPCM for violations of the Uniform Code of Military Justice (UCMJ):  Article 86 (UA) and Article 134 (Communicating a threat).  In addition, the Applicant was found guilty in a Superior Court of the State of California for the County of San Diego on two counts for the crimes of ‘Child Molesting’ and ‘Lewd Acts upon a Child’ occurring on or about 31 March 1998.  These violations are considered serious offenses, which constitutes a significant departure from the conduct expected from a Marine and warrant separation from the service in order to maintain proper order and discipline.  

First of all, the Applicants case was heard by a Military Judge (MJ) alone, per his request.  The Applicant pled guilty to the charges of UA and communicating a threat.  The MJ stated to the Applicant “A plea of guilty is the strongest form of proof that is known to law.  Based on your plea of guilty alone, without receiving any evidence, this court-martial can find you guilty of the offenses to which you’re pleading guilty.”  The MJ asked the Applicant if he understood that and the Applicant replied “Yes, sir.”  The NDRB determined the guilty plea on both charges was entered freely by the Applicant.  Secondly, the Applicant felt that his prior civilian conviction was used against him.  The civilian conviction was the prosecutions exhibit #2 in the case, but was never mention throughout the proceedings regarding the charges the Applicant was facing.  The MJ only mentioned the word “civilian conviction” prior to him sentencing the Applicant.  The MJ said, “Before I announce sentence I’m going to make some special findings in the case.”  On special finding three (3), the MJ states “I’ve only considered the civilian conviction as it relates to potential for rehabilitation and not any other matter.”  After the Applicant was sentenced, the MJ was made aware that the Applicant was still serving confinement time in San Diego with civilian authorities, due to his civilian conviction, and that his 100 day of confinement adjudged at the SPCM would have to be deferred until the civilian sentence was completed.  The case went through the Appellate process, with no impropriety or prejudice noted.  The NDRB is allowed to take into account all the Applicants misconduct to better form an opinion into his character.  The NDRB determined the proceeding was proper and that clemency is not warranted for either issue.     

The NDRB is authorized to consider post-service factors in consideration if a case warrants clemency.  Outstanding post-service conduct, to the extent such matters provide a basis for clemency, are considered during Board reviews.  Supporting documentation to help support post service clemency 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; attending or completion of higher education (official transcripts) and documentation of a drug free lifestyle.  The Applicant is advised that completion of these items alone does not guarantee clemency will be granted, as each discharge is reviewed by the Board on a case by case basis to determine if post service conduct justifies clemency.  

The Applicant’s case was considered under the pertinent standards of equity to determine if any factors in this particular case merited clemency.  As documentation supporting post service, the Applicant provided service-related documentation, several references (dated 1999) from his SPCM and Congressional correspondence as evidence on his behalf.  However, to warrant clemency, the Applicant’s post service efforts need to be more encompassing.  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 Discharge”, was an appropriate characterization considering the length of service and the UCMJ violations involved, and based on the lack of post service documentation provided, clemency would be inappropriate.  Should the Applicant obtain additional evidence or post service documentation he may wish to apply for a personal appearance.  There are veteran’s organizations, such as the American Legion, willing to provide guidance to assist former service members in their efforts to obtain a discharge upgrade.  

After a thorough review of the available evidence, to include the Applicant’s Summary of Service, Service 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. 

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:  Article 86 (UA) and Article 134 (Communicating a threat). 

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 NDRB has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities.  Regulations limit the NDRB’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 NDRB 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 NDRB 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 – Non-judicial 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	CCU - Correctional Custody Unit	BW – 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