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

Docket No. MD10-00638

ex-Pvt, USMC

Current Discharge and Applicant’s Request

Application Received:  20091229
Characterization of Service Received: (per DD 214) BAD CONDUCT DISCHARGE
Narrative Reason for Discharge: (corrected) COURT-MARTIAL
Authority for Discharge: (per DD 214) MARCORSEPMAN 1105 [COURT-MARTIAL]

Applicant’s Request:	Characterization change to: GENERAL (UNDER HONORABLE CONDITIONS)
	Narrative Reason change to: ENTRY LEVEL SEPARATION

Summary of Service

Prior Service:
Inactive:	USMCR (DEP)	19930903 - 19940731  COG	Active:	NONE

Period of Service Under Review:
Date of Current Enlistment:  19940801	Age at Enlistment:  18
Period of Enlistment:  4 Years  0 Months
Date of Discharge:  19960713	Highest Rank:  LANCE CORPORAL
Length of Service:  01  Year(s)  07  Month(s)  11  Day(s)
Education Level:  12	AFQT:  57
MOS:  0311
Proficiency/Conduct Marks (# of occasions):  4.5 (2) / 3.0 (3)	Fitness Reports:  NOT APPLICABLE

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

Periods of UA/CONF:  	UA       19950606 - 19950702 (27 days)
			UA       19950708 - 19950824 (48 days)
			CONF  19950825 - 19950920 (27 days)
			CONF  19950921 - 19951012 (22 days)

NJP:  NFIR

SCM:  NONE

SPCM:  1

- 19950921:	Article 86 (Absence without leave), 19950708 - 19950825
	Sentence: FOP CONF(75 days) RIR E-1 BCD   Suspended: CONF (15 days suspended for 12 months)

CC:  NONE

Retention Warning Counseling:  NFIR

Administrative Corrections to the Applicant’s DD 214

The NDRB did note administrative error(s) on the original DD Form 214:

	Block 28, Narrative Reason for Separation, should read: “COURT-MARTIAL”

The NDRB will recommend to the Commandant of the Marine Corps that the DD 214 be corrected as appropriate.

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.

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 86.

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

Applicant’s Issues

1.	Applicant contends his discharge was inequitable based on his record of service and only isolated misconduct.

Decision

Date:  20110210	DOCUMENTARY REVIEW	Location: Washington D.C.	 Representation: NONE

By a vote of 4-1 the Characterization shall remain BAD CONDUCT DISCHARGE.
By a vote of 5-0 the Narrative Reason shall remain COURT-MARTIAL.

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 identified one decisional issue for the Board’s consideration.  The Applicant's case was considered by the Board, which completed a thorough review of the circumstances that led to his discharge and the discharge process to ensure his discharge met the pertinent standards of equity to determine if any factors in this particular case merited clemency.  The Board noted that the Applicant’s service records were incomplete and did not include the record of trial from his Special Court-Martial proceeding.  Within the available documentation, the Applicant’s record of service did not contain any 6105 retention counseling warnings or commanding officer’s nonjudicial punishment (NJP), though the records did show the Applicant was charged “time lost” (19950606-19950702) and reduced from E-3 to E-2 in 1995, likely indicative of punishment awarded as a result of NJP due to unauthorized absence (UA).  The record also reflected the Applicant was found guilty at trial by Special Court-Martial for violation of the Uniform Code of Military Justice (UCMJ): Article 86 (Absence without leave, 48 days, from 19950708-19950824, which concluded by his apprehension by military police).  He was sentenced to forfeiture of two-thirds pay for two months, confinement for 75 days, reduction in rank to E-1, and a Bad Conduct Discharge from the Marine Corps.  His case was submitted on appeal to the Navy-Marine Corps Court of Criminal Appeals, which, after thorough review (13 Jul 1996), found that the court proceedings, findings, and resultant sentence to be materially correct, lawful, and just and affirmed the Convening Authority’s action as adjudged.

Issue 1:  (Decisional) (Clemency)  RELIEF NOT WARRANTED.  The Applicant contends his discharge was inequitable based on his record of service and one isolated misconduct.  The Applicant’s case was considered under the pertinent standards of equity to determine if any factors in this particular case merited clemency.  The reason for discharge, convicted by Special Court-Martial, is appropriate.  After careful examination and consideration of the available evidence, to include the Applicant’s Summary of Service and Service Record Entries, the Board found clemency was not warranted and the sentence awarded the Applicant at his court-martial was appropriate for the offenses he committed.  

Additionally, on his Application for Review of Discharge (DD Form 293) the Applicant requested a change to the Narrative Reason for discharge listed on his DD Form 214 from “Court-Martial” to “Entry Level Separation (ELS).”  The Naval Military Personnel Manual (MILPERSMAN) section 1910 states Entry Level Separations are only applicable when a service member is within the first 180 days of continuous active duty service.  The Applicant was found guilty and awarded a Bad Conduct Discharge on 21 Sep 1995, which was 417 days into his enlistment; therefore, the Applicant’s requested change to narrative reason for separation cannot be granted based on the Applicant’s total length of service at the time his punitive discharge was adjudicated.

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

The Applicant remains eligible for a personal appearance hearing for a period of fifteen years from the date of his 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

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