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

Docket No. MD09-00749

ex-Pvt, USMC

Current Discharge and Applicant’s Request

Application Received:  20090212
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:  UNCHARACTERIZED
		       Narrative Reason change to:  NONE REQUESTED

Summary of Service

Prior Service:
Inactive:	USMCR (DEP)	20011227 - 20020225  COG	Active:	NONE

Period of Service Under Review:
Date of Enlistment:  20020226	Age at Enlistment:  19
Period of Enlistment:  5 Years  0 Months
Date of Discharge:  20050509	Highest Rank:  PRIVATE FIRST CLASS
Length of Service:  03  Year(s)  02  Month(s)  13  Day(s)
Education Level:  GED	AFQT:  61
MOS:  6222
Proficiency/Conduct Marks (# of occasions):  NFIR / NFIR	Fitness Reports:  NOT APPLICABLE

Awards and Decorations (per DD 214):	Rifle EX NDSM

NJP:  1
- 20021018:  Article 92 (Consumed alcohol while under the legal age and violated Leave and Liberty Regulation by 
                                       driving during restricted hours), 2 specifications:
			- Article 107 (False official statement)
			- Article 111 (Operate a motor vehicle while impaired)
                     Awarded:  RIR FOP RESTR EPD  Suspended:  NONE

SCM:  NONE   CC:  NONE

SPCM:  1
- 20040331:  Article 134 (Wrongfully and willfully impersonate a commissioned officer and wrongfully and without 
                                         authority wear the insignia or grade of a Captain), 2 specifications	
                      Article 121 (Wrongfully appropriated an ATM card and stole $204.00, $202.50 and $202.50), 
                                         4 specifications
                     Sentence:  RIR TO E-1 FOP CONF FOR 6 MONTHS (20040331-20040720 (112 DAYS)) BCD
                     CA Action 20040831 Sentence approved and, except for the BCD, will be executed but the execution of 
                     that part of the sentence extending to confinement in excess of 135 days is suspended for a period of 12 
                     months.

Retention Warning Counseling:  4

- 20021018:  For my alcohol related incident, specifically, operating a motor vehicle while impaired (BAC .17).  This is
                     your second DUI conviction in less than a year.  You further compounded your situation by consuming
                     alcohol while under the legal age to do so and by violating MUO 1050.1/Leave and Liberty Regulations,
                     specifically driving during restricted hours.  Your conduct, lack of integrity and total lapse of judgment 
                     since you joined this command has been UNSAT!  This blatant disregard for Orders and Regulations, 
                     lapse in judgment, lack of maturity, self-control, self-discipline, and adolescent/cavalier attitude will NOT 
                     be tolerated!

- 20021025:	For exceeding Marine Corps height/weight standards.

- 20030822:	For failure to obey an order or regulation, to wit:  ASO 5101.6M by wrongfully driving without a license and driving station suspension.

- 20030924:	For failure to maintain Marine Corps Body Composition Standards per MCO 6100.12.

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:  ☐

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 92 (Consume alcohol while under the legal age and violate Leave and Liberty Regulation by driving during restricted hours); Article 107 (False official statement); Article 111 (Operate a motor vehicle while impaired); Article 121 (Wrongfully appropriate ATM card and steal $204.00, $202.50 and $202.50) and Article 134 (Wrongfully and willfully impersonate a commissioned officer and wrongfully and without authority wear the insignia or grade of a Captain).

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

Applicant’s Issues

1. Desires to join the National Guard.

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:  (Clemency)  RELIEF NOT WARRANTED.  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, specificially the paragraph concerning Reenlistment/RE Codes, regarding this Issue.

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 1 SPCM and 1 NJP for violations of the Uniform Code of Military Justice (UCMJ): Article 92 (Consumed alcohol while under the legal age and violated the Leave and Liberty Regulation by driving during restricted hours); Article 107 (False official statement); Article 111 (Operate a motor vehicle while impaired); Article 121 (Wrongfully appropriate ATM card and steal $204.00, $202.50 and $202.50) and Article 134 (Wrongfully and willfully impersonated a commissioned officer and wrongfully and without authority wore the insignia or grade of a Captain).

The NDRB is authorized to consider post-service factors in determining if clemency is warranted.  However, there is no law or regulation, which provides clemency 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 post service conduct clemency, 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 provided statements of employment, education, stable family existence, and becoming more mature. The Applicant also stated he no longer drinks alcohol, and that he is married and has a child.  The Applicant did not provide documentation to substantiate his claim.  While the Board applauds the Applicant’s post service efforts, the Board determined the evidence of post-service conduct is not sufficient to warrant clemency. 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 NDRB determined clemency was not warranted.

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 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