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

Docket No. MD09-02121

ex-Pvt, USMC

Current Discharge and Applicant’s Request

Application Received:  20090728
Characterization of Service Received:  (per DD 214)  BAD CONDUCT
Narrative Reason for Discharge:  (per DD 214) AS A RESULT OF A COURTS-MARTIAL (SPCM) – OTHER
Authority for Discharge:  (per DD 214) MARCORSEPMAN 1105 [COURT-MARTIAL]

Applicant’s Request:	Characterization change to:  GENERAL (UNDER HONORABLE CONDITIONS)
	Narrative Reason change to:  NONE REQUESTED

Summary of Service

Prior Service:
Inactive:	USANG	19760828 - 19811017  HON	Active:	USANG	19760606 - 19760827  HON
	USMCR (DEP)	19840614 - 19840708  COG		USMCR	19840709 - 19880201  HON

Period of Service Under Review:
Date of Current Enlistment:  19880202	Age at Enlistment:  29
Period of Enlistment:  6 Years  0 Months
Date of Discharge:  19950329	Highest Rank:  SERGEANT
Length of Service:  07  Year(s)  01  Month(s)  28  Day(s)
Education Level:  12	AFQT:  80
MOS:  0431
Fitness Reports:  AVAILABLE

Awards and Decorations (per DD 214):	Rifle MM (5) NDSM GCM (2) CoC (3) SSDR (3) NAM (3), LoA

Periods of CONF:  19930430-19930709 (71 days)

NJP:  1

- 19930319:	Article 112a (Wrongful use of controlled substances, type & amount NFIR)
	Awarded: RIR FOP RESTR EPD  Suspended:  NONE

SCM:  NONE

SPCM:  1

- 19930701:	Article 112a (Wrongful use of controlled substances - amphetamines/methamphetamines), 2 specifications
	Specification 1: Wrongfully use amphetamines/methamphetamines
	Specification 2: Wrongfully introduce amphetamines/methamphetamines on an installation used by the armed forces)
	Article 92 (Violation of general order, wrongfully possessing unregistered firearms aboard base housing)
	Sentence: BCD CONF FOR 3 MONTHS FOP RIR TO E-1

CC:  NONE

Retention Warning Counseling:  2

- 19910805:	For your non-availability for worldwide service and unavailability to stand non-standard duties due to a single parent/sole custody of child.

- 19930329:	For your total lack of leadership ability and irresponsibility displayed by his failure to keep accountability of his M-16A2 rifle when he has it checked out from the armory.  He is also counseled on total inability to accept responsibility for his actions as an NCO, Marine and an adult man.  SNM is encouraged to think before he acts or speaks and not make any excuses or put the blame on anyone else for his total lack of judgment and unacceptable actions.  He is made aware that any further incidents of unsatisfactory leadership and judgment, or failure to accept responsibility for his action will result in further administrative action, NJP and separation from the United States Marine Corps.

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 COURTS-MARTIAL, of the Marine Corps Separation and Retirement Manual, (MCO P1900.16D), effective 27 June 1989 until 17 August 1995.

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.  Had no trouble with any law enforcement since discharge.

Decision

Date:  20100812	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 AS A RESULT OF A COURTS-MARTIAL (SPCM) – OTHER.

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 two 6105 counseling warnings; one nonjudicial punishment for violation of the Uniform Code of Military Justice (UCMJ): Article 112a (Wrongful use controlled substances: type and amount not found in record); and one special court-martial (SPCM) for violations of the UCMJ: Article 92 (Failure to obey order or regulation: wrongfully possessing unregistered firearms aboard base housing at Camp Pendleton, CA) and Article 112a (Wrongful use and introduction of controlled substances, 2 specifications:  wrongfully use amphetamines/methamphetamines (amount not found in record) and wrongfully introduce amphetamines/ meth-amphetamines on an installation used by the armed services).  The Applicant had a pre-service drug waiver for using marijuana prior to entering the Marine Corps.  At his SPCM, the Applicant pled and was found guilty of the above violations and was sentenced to a Bad Conduct discharge, confinement for three months, forfeiture of pay, and reduction in rank to E-1.

Issue 1:  (Decisional) (Clemency)  RELIEF NOT WARRANTED.  The Applicant contends he has not had trouble with any law enforcement since being discharged. 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 on the DD Form 293, he failed to provide any additional documentation and evidence on his behalf.  The Applicant’s statements alone, without sufficient documentary evidence, are not enough to form a basis of relief.  However, even if the Applicant provided evidence of outstanding post-service conduct, the Applicant must have a full understanding that post-service conduct alone does not guarantee clemency.  

Summary:  After a thorough review of the available evidence, to include the Applicant’s summary of service, service record entries, and discharge process, the Board found clemency was not warranted. Therefore, the awarded characterization of service shall remain BAD CONDUCT and the narrative reason for separation shall remain AS A RESULT OF A COURTS-MARTIAL (SPCM) – OTHER.

Since fifteen years have elapsed since the date of his discharge, the Applicant is not eligible for a personal appearance hearing before the Naval Discharge Review Board.  The Applicant may petition the Board for Correction of Naval Records (BCNR), 2 Navy Annex, Washington, DC 20370-5100 for further review.

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