ex-, USMC

Current Discharge and Applicant’s Request

Application Received:  20090623
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)	19920214 - 19920623  	Active:	

Period of Service Under Review:
Date of Current Enlistment:  19920624	Age at Enlistment:  
Period of Enlistment:   Years   Months
Date of Discharge:  19951204	Highest Rank:  
Length of Service:    Year(s)    Month(s)  11  Day(s)
Education Level:  	AFQT:  52
MOS:  7051
Proficiency/Conduct Marks (# of occasions):   () /  ()	Fitness Reports:  

Awards and Decorations (per DD 214):	Rifle   

Periods of CONF:  19940402-19940405, 4 days

NJP:  

- 19940502:	Article  (UA on 19940213)
	Article  (Violation of lawful order or regulation)
	Specification 1: By leaving the confines of MCAF, which violated CFR recall procedures by not notifying his section leader
	Specification 2: Having a female guest in barracks overnight
	Specification 3: For consumption of alcohol under the age of 21 on three separate occasions
	Article  (Drunk and disorderly by being combative with a civilian police and with a commissioned officer)
	Awarded:     Suspended:  

- 19940725:	Article  (UA, 0739-1230, 19940718)
	Article  (Disobey a lawful order)
	Article 128 (Assault)
	Awarded:     Suspended:     Suspension vacated 19940808

SCM:  

SPCM:  

- 19941012:	Article  (UA), 2 specifications
	Specification 1: 0730-0830, 19940802
	Specification 2: 0730-0830, 19940804
	Article  (Steal $83.60)
	Article  (General order - drunk and disorderly)
	Sentence:  for 75 days (19940808-19941012, 66 days) 
	CA Action 19950331: The sentence is approved and, except for the part extending to a BCD, will be executed, but the execution of that part of the sentence extending to confinement in excess of time served in pretrial confinement, will be suspended for a period of 12 months.

CC:  NFIR

Retention Warning Counseling:  

- 19940407:	For underage drinking of alcohol which resulted in legal charges being filed by both civilian and military authorities.

- 19940721:	Concerning being afforded the opportunity to receive medical treatment for alcohol dependence from 19990713 to 19940813.  You were diagnosed by competent medical authorities at Naval Medical Clinic, Quantico, VA on 19940425.  I am refusing this treatment.  I understand that refusal of this treatment will result in administrative discharge.

- 19940721:	Concerning being processed for discharge due to refusal of alcohol rehabilitation.

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:		Rehabilitation/Treatment:		Criminal Records:	
	Personal Documentation:		Community Service:		References:	
	Department of VA letter:		Other Documentation:	
		Additional Statements:
	From Applicant:		From/To Representation:		From/To Congress member:	

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.  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.

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

	Applicant’s Issues

1.  Post-service conduct warrants clemency.

Decision

Date:  20100805		Location: Washington D.C.	 Representation: 

By a vote of  the Characterization shall  BAD CONDUCT.
By a vote of  the Narrative Reason shall  .

Discussion

The NDRB, under its responsibility to examine the propriety and equity of an Applicant’s discharge, is authorized to change the character of service and the reason for discharge if such change is warranted.  In reviewing discharges, the Board presumes regularity in the conduct of Government affairs unless there is substantial credible evidence to rebut the presumption, to include evidence submitted by the Applicant.  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.   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.  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 included three 6105 counseling warnings; two nonjudicial punishments for violations of the Uniform Code of Military Justice (UCMJ): Article 86 (Absence without leave, 2 specifications: 1 day each), Article 91 (Disobey a lawful order), Article 92 (Violation of lawful order or regulation, 3 specifications: left confines of MCAF, underage drinking (3x), and having a female guest in barracks overnight), Article 128 (Assault), and Article 134 (Drunk and disorderly by being combative with a civilian police officer and with a commissioned officer); and one special court martial (SPCM) for violations of the UCMJ:  Article 86 (Absence without leave, 2 specifications: 1 hour twice), Article 121 (Larceny, stole $83.60), Article 134 (Drunk and disorderly, 2 specifications).  At the SPCM, the Applicant pled and was found guilty of all charges except for the Article 134 charges.  He was sentenced to confinement for 75 days and a Bad Conduct discharge.

Issue 1:  (Decisional) ()  .  The Applicant contends he has been a productive member of society since being discharged.  He stated he started a career in painting, ran four marathons, trained troubled youth in boxing, is actively involved in a 12-step program, and has a wonderful family.  The NDRB considers 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.  Besides the Applicant’s statement with his DD Form 293, he failed to provide any additional documentation and evidence on his behalf to support a post-service conduct review.  The Applicant’s statements alone, without sufficient documentary evidence, are not enough to form a basis of relief.  The Applicant could have provided documentation that could include but is not limited to: letters of personal references and verifiable employment record, letters of recommendation from his employers; evidence of a drug-free lifestyle (completion of rehabilitation or proof of attendance at Narcotics Anonymous or Alcoholics Anonymous meetings); certification of non-involvement with civil authorities; evidence of financial stability (mortgage or home rental history, credit score, credit card payments); college transcripts; documentation of community or church service; and if married, a marriage certificate.  The Applicant should be aware submission of these items alone does not guarantee clemency as each discharge is reviewed by the NDRB on a case-by-case basis.

Summary:  After a thorough review of the available evidence, to include the Applicant’s summary of service,  record entries, and discharge process, the Board found   Therefore, the awarded characterization of service shall  BAD CONDUCT and the narrative reason for separation shall remain .

The Applicant remains eligible for a personal appearance hearing for a period of fifteen years from the date of  discharge.  The Applicant is directed to the Addendum, specifically the paragraphs titled Additional Reviews, Automatic Upgrades, and Post-Service Conduct.

ADDENDUM:  Information for the Applicant

Complaint Procedures:  If you believe 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:  After a document review has been conducted, former members are eligible for a personal appearance hearing, provided the application is received at the NDRB within 15 years of the Applicant’s 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.  There are veterans organizations such as the American Legion and the Disabled American Veterans that are willing to provide guidance to former service members in their efforts to obtain a discharge upgrade.  If a former member has been discharged for more than 15 years, has already been granted a personal appearance hearing or has otherwise exhausted their 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 U.S. Department of Veterans Affairs (VA) determines eligibility for post-service benefits, not the NDRB.  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 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 is processed subsequently for an administrative involuntary separation or is referred to a court martial for misconduct, the disability evaluation is suspended pending the outcome of the non-disability proceedings.  If the action includes either a punitive or administrative discharge for misconduct or for any basis wherein an Other Than Honorable discharge is authorized, 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 BCNR can grant this type of narrative reason change.

Automatic Upgrades - There is no law or regulation that provides for an unfavorable discharge to be upgraded based solely on the passage of time or good conduct subsequent to leaving naval service.  

Post-Service Conduct:  The NDRB is authorized to consider post-service factors in the recharacterization of a discharge.  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 support a post-service conduct upgrade includes, but is not limited to: a verifiable continuous employment record; marriage and children’s birth certificates (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 at 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 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  in-service misconduct was an aberration and not indicative of the member’s overall character.

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