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

Docket No. MD09-01323

ex-Pvt, USMC

Current Discharge and Applicant’s Request

Application Received:  20090416
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)	19990521 - 19990607  COG	Active:	NONE

Period of Service Under Review:
Date of Enlistment:  19990608	Age at Enlistment:  17 (PARENTAL CONSENT)
Period of Enlistment:  4 Years  0 Months
Date of Discharge:  20070201	Highest Rank:  LANCE CORPORAL
Length of Service:  07  Year(s)  07  Month(s)  25  Day(s)
Education Level:  12	AFQT:  32
MOS:  3531
Proficiency/Conduct Marks (# of occasions):  3.6 / 3.0	Fitness Reports:  NOT APPLICABLE
Awards and Decorations (per DD 214):	Rifle MM NDSM GWOTSM

Periods of UA:  20000605 - 20001015 (133 days)
            CONF:  20010119 - 20010304 (45 days)

NJP:  2
- 20000216:	Article 86 (Unauthorized absence -0000117-0000119, 2 days)
	Article 92 (Failure to obey a lawful written order - wearing an earring)
	Awarded: FOP RESTR EPD  Suspended:  NONE

- 20001031:	Article 112a (Drug abuse, wrongful use of a controlled substance - MDMA)
	Awarded: FOP RIR RESTR  Suspended:  FOP

SPCM:  1

- 20010118:	Article 86 (Unauthorized absence: 20000605 – 20001016, 133 days)
	Article 87 (Missing movement)
		Sentence: BCD CONF5 MONTHS 20010119 - 20010304 (45 days)

SCM:  NONE         CC:  NONE         Retention Warning Counseling:  NONE

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.  Reenlistment opportunity.
2.  Youth and immaturity.
3.  Post-service conduct.

Decision

Date:  20090709	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, Reenlistment/RE Code, regarding this Issue.

Issue 2:  (Clemency)  RELIEF NOT WARRANTED.  The Applicant contends his problems in the Marine Corps can be attributed to mistakes due to his youth and immaturity.  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 two NJPs for violations of the Uniform Code of Military Justice (UCMJ):  Article 86 (UA, 2 days), Article 92 (Failure to obey an order or regulation, wearing an earring), and Article 112a (Wrongful use of a controlled substance, MDMA [Ecstacy]) (The Applicant had a pre-service drug waiver for using amphetamines once and marijuana five times prior to entering the Marine Corps, and acknowledged his complete understanding of the Marine Corps Policy Concerning Illegal Use of Drugs on 19 May 1999.); and one SPCM for violations of the UCMJ: Article 86 (UA, 133 days) and Article 87 (Missing movement).  The NDRB advises the Applicant certain serious offenses warrant separation from the service to maintain proper order and discipline.  Violation of Article 112a is one such offense requiring, 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. However, the Applicant was tried at a SPCM for his extended UA of 133 days and missing movement.  While he may feel his youth was the underlying cause of his misconduct, the record of evidence does not demonstrate the Applicant was not responsible for his misconduct or should not be held accountable for his actions due to youth or immaturity.  The Board determined clemency is not warranted.

Issue 3:  (Clemency)  RELIEF NOT WARRANTED.  The Applicant contends “It has been almost ten years and I have changed a lot.”  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 four references as evidence on his behalf.  While the Board applauds the Applicant for taking positive steps to improve his life and showing a high level of maturity and good citizenship, the Board determined the evidence of post-service conduct was not sufficient enough 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.  

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.  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 violations of the UCMJ, Article 86 (UA more than 30 days), Article 87 (Missing movement), and Article 112a (Wrongful use of controlled substances). 

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