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

Docket No. MD09-00396

ex-Pvt, USMC

Current Discharge and Applicant’s Request

Application Received:  20081205
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)	19910308 - 19910319  COG	Active:	USMC  19910320 - 19950112  HON 
			USMC  19950113 - 19991219  COG
			USMC  19991220 - 20030504  COG
Period of Service Under Review:
Date of Enlistment:  20030505	Age at Enlistment:  30
Period of Enlistment:  4 Years  0 Months
Date of Discharge:  20060119	Highest Rank:  STAFF SERGEANT
Length of Service:  02  Year(s)  08  Month(s)  15  Day(s)
Education Level:  11	AFQT:  85
MOS:  3537
Proficiency/Conduct Marks (# of occasions):  NA	Fitness Reports:  AVAILABLE

Awards and Decorations (per DD 214):	Rifle EX NDSM(2) NMCAM(4) GCM(4) GWOTEM SSDR PUC 
	NUC(2) 

Periods of UA/CONF:  NONE   

NJP:  NONE   

SCM:  NONE   

SPCM:  1

- 20040823:	Article Article 112a (Methamphetamine use)
	Sentence:  BCD; RIR E-1; FOP; REPRIMAND;CONF 30 Days (20040824-20040915 (22 Days))

CC:  NONE

Retention Warning Counseling:  NONE

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

	Block 18, Remarks, should contain the statement: “CONTINUOUS HONORABLE ACTIVE SERVICE FROM 19910320 UNTIL 20030504”

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

Types of Documents Submitted/reviewed

Related to Military Service: 
              DD 214:  ☒	                            Service/Medical Record:  ☒           Other Records:  ☒
	Record of trial dated 23 August 2004.

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. Isolated incident of misconduct.
2. U.S Department of Veterans Affairs (VA) diagnosis of Post-Traumatic Stress Disorder (PTSD).

Decision

Date:  20090312	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 contends she is entitled to clemency due to her record of service.  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 which reduces the severity of the punishment imposed.  The Applicant’s record of service was marred by one SPCM for violations of the Uniform Code of Military Justice (UCMJ): Article 112a (Wrongful use or possession of a controlled substance). The NDRB advises the Applicant certain serious offenses, even though isolated, warrant separation from the service to maintain proper order and discipline.  Violation of Article 112a is one such offense requiring mandatory separation regardless of time in service or grade.  Violations of this policy result in, at a minimum, mandatory processing for an administrative separation which usually results in an unfavorable characterization of discharge or, at a maximum, a punitive discharge and possible confinement if adjudicated and awarded as part of a sentence by a special or general court-martial.  The Applicant was given an SPCM and awarded a Bad Conduct discharge. The NDRB determined clemency is not warranted.

Issue 2:  (Clemency)  RELIEF NOT WARRANTED.   The Applicant contends she is entitled to clemency due to her diagnosis by the VA with PTSD.  In support of this Issue, the Applicant submitted documentation showing the VA considers her service as honorable and is providing treatment and disability pay.  The Applicant should understand the VA’s determination of honorable service is only meaningful in determining eligibility to VA benefits; the VA determination is not binding on the Marine Corps.  Furthermore, the record of evidence shows the Applicant was evaluated by competent medical authorities on 11 August 2004 (prior to her SPCM) who specifically stated the Applicant was not suffering from PTSD symptoms. The NDRB therefore rejects the Applicant contention; clemency is not warranted.

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 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; attendance or completion of higher education (official transcripts); and documentation of alcohol non-dependency and 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.

While the Board applauds the Applicant's post-service efforts, she provided no documented evidence of it.  Consequently, the Board determined the evidence of post-service conduct was not sufficient enough to warrant clemency of her discharge characterization.  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 violation involved, and based on the limited post-service documentation provided clemency would be inappropriate.

Should the Applicant obtain additional evidence or post-service documentation she may wish to apply for a personal appearance.  There are veteran's organizations, such as the American Legion, willing to provide guidance to former service members in their efforts to obtain clemency.  

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 her court-martial was appropriate for the offenses she 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 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 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 – 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	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