Title: DEPARTMENT OF THE NAVY
Author: CAP
Last saved by: jennifer.miles
Company: NCPB

Docket No. MD09-02083

ex-, USMC

Current Discharge and Applicant’s Request

Application Received:  20090723
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)	19970508 - 19970519  	Active:	

Period of Service Under Review:
Date of Current Enlistment:  19970520	Age at Enlistment:  
Period of Enlistment:   Years   Months
Date of Discharge:  20011024	Highest Rank:  
Length of Service:    Year(s)    Month(s)  00  Day(s)
Education Level:  	AFQT:  62
MOS:  1341
Proficiency/Conduct Marks (# of occasions):   () /  ()	Fitness Reports:  

Awards and Decorations (per DD 214):	Rifle  

Periods of CONF: 19991207-20000112 (36 days)

NJP:  
- 19980819:	Article  (Unauthorized absence by failing to go to morning formation on 19980810)
	Article 92 (Failure to obey an order or regulation: Violate MCO P1020.34F, by not shaving) 
	Awarded:  CCU 30 DAYS   Suspended:  

SCM:  

SPCM:  
- 20000112:	Article  (Unauthorized absence by failing to go to appointed place of duty on 19991102)
	Article 91 (Insubordinate conduct - 2 specifications: disobeyed a lawful order & disrespectful to a SNCO)
	Article 112a (Drug abuse, wrongful possession of a controlled substance - 2 specifications)
	Article 112a: (Drug abuse, wrongful use of a controlled substance: marijuana)
	Sentence:   CONF 60 DAYS 

CC:  

Retention Warning Counseling:  
- 19980320:	For failure to arrive at the appointed place of duty.

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.

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

Applicant’s Issues

1.  The Applicant seeks clemency to enhance employment/educational opportunities.
2.  The Applicant seeks clemency to possibly reenlist into the Armed Forces.
3.  The Applicant contends the command environment was an accessory to his misconduct. 
4.  The Applicant believes his post-service conduct is worthy of consideration.

Decision

Date:  20100812                    Location:  Washington D.C.          Representation:  

By a vote of  the Characterization shall  .
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  6105 counseling warnings,   for  of the Uniform Code of Military Justice (UCMJ): Article  (Unauthorized absence by failing to go to morning formation) and Article 92 (Failure to obey an order or regulation by violating MCO P1020.34F, by not shaving); and   for  of the UCMJ: Article  (Unauthorized absence by failing to go to appointed place), Article 91 (Insubordinate conduct - 2 specifications: disobeyed a lawful order & disrespectful to a SNCO), Article 112a (Drug abuse, wrongful possession of a controlled substance - 2 specifications) and Article 112a: (Drug abuse, wrongful use of a controlled substance: marijuana).  Initially, the Applicant did not have a pre-service drug waiver for using marijuana prior to entering the Marine Corps, but did require one when he tested positive at receiving, which required amendment to his enlistment contract.  He acknowledged  complete understanding of the Marine Corps Policy Concerning Illegal Use of Drugs on 2 May 1997.  Based on the Article 112a violation, processing for administrative separation is mandatory.  The Applicant was convicted at a SPCM and was discharged from the Marine Corps.

:  (Nondecisional) The Applicant seeks clemency to enhance employment/educational opportunities and to possibly reenlist into the Armed Forces.  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.  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.

:  (Decisional) ()  .  The Applicant contends the command environment was an accessory to his misconduct.  The Applicant stated many events happened during his enlistment, such as misrepresentation by the recruiter when amending his enlistment contract regarding bonus money, his command denying him from taking college classes, and the unfair treatment he received from his Staff Noncommissioned Officers (SNCO) and Noncommissioned Officers (NCOs), especially after he had a mental health evaluation.  Unfortunately, the Applicant did not provide any documentation to substantiate his claims.  The NDRB is not stating that these events didn’t happen, only that there was no verifiable documentation to confirm such claims.  The NDRB determined that the Applicant’s discharge was warranted based on the seriousness of the charges.  Clemency denied.

Issue 4:  (Decisional) ()  .  The Applicant believes his post-service conduct is worthy of consideration.  The NDRB is authorized to consider post-service factors to determine if clemency is warranted.  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 certificates (if applicable); character references; 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.  Although the Applicant provided several character references, certificates of accomplishment pertaining to employment and a criminal background check, his post-service efforts need to be more encompassing.  The Board determined the characterization of service received was appropriate considering the length of service and the UCMJ violations involved.  Clemency denied.

Summary:  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.  Therefore, the awarded characterization of service shall   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.  Should the Applicant feel at some later time his post service conduct is worthy of personally presenting to the     NDRB there are organizations, such as the American Legion, Disabled American Veterans, etc. that are willing to provide guidance and assistance in preparing such a presentation.  Should the Applicant feel at some later time his post service conduct is worthy of personally presenting to the NDRB there are organizations, such as the American Legion, Disabled American Veterans, etc. that are willing to provide guidance and assistance in preparing such a presentation. The Applicant is directed to the Addendum, specifically the paragraphs titled Additional Reviews, Reenlistment/RE-code, Employment/Educational Opportunities, 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

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	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