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

Docket No. MD10-00712

ex-, USMC

Current Discharge and Applicant’s Request

Application Received:  20100112
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)	19970412 - 19970421  	Active:	

Period of Service Under Review:
Date of Current Enlistment:  19970422	Age at Enlistment:  
Period of Enlistment:   Years   Months
Date of Discharge:  20000121	Highest Rank:  
Length of Service:    Year(s)    Month(s)  30  Day(s)
Education Level:  	AFQT:  42
MOS:  0811
Proficiency/Conduct Marks (# of occasions):   () /  ()	Fitness Reports:  

Awards and Decorations (per DD 214):	Rifle  

Periods of UA:  19980125-19980318 (54).   Confinement: 19980609-19980702 (24), 19990107-19990130 (24)

NJP:  

SCM:  

- 19980609:	Article  (, : 25 Jan 1998-18 Mar 1998, 54 days, surrendered)
	Sentence:   

SPCM:  

- 19990107:	Article  (Wrongful use, possession etc of a controlled substance, : marijuana).
	Article 113 (Misbehavior of a sentinel or lookout, 1 specification).
	Sentence: (60 days)  

CC:  

Retention Warning Counseling:  

- 19971210:	For failure to return from liberty on time.  
- 19980223:	For failure to return from liberty on time.  
- 19981023:	For testing positive for drugs (marijuana).
- 19990217:    For failure to follow orders/regulations, specifically driving a POV on a state suspension.  

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.

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

Applicant’s Issues

1.	The Applicant contends he should not have a Bad Conduct Discharge since his DD-214 states Good Conduct Medal period commences 990317.
2.	The Applicant contends his discharge is improper, because his DD-214 states he was unavailable for signature.  The Applicant states he was never given the opportunity to confront his accusers or present his case for this charge.  
3.    The Applicant contends his discharge is inequitable, because he was on several pain medications, which should have been taken into account during separation proceedings.
4.    The Applicant contends he suffered a broken foot, was denied proper medical care, and unfairly treated by his command.  

Decision

Date:  20110217		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 violation of the Uniform Code of Military Justice (UCMJ): Article               (,: 54 days, surrendered); and   for  of the UCMJ: Article  (Wrongful use, possession, etc, : marijuana) and Article 113 (Misbehavior of a sentinel or lookout, 1 specification).  The Applicant  a pre-service drug waiver and acknowledged  complete understanding of the Marine Corps Policy Concerning Illegal Use of Drugs on 10 April 1997.  Based on the Applicant’s conviction at special court-martial, and following appellant review, he was separated with a Bad Conduct Discharge.  

:  (Decisional) ()  .  The Applicant contends he should not have a Bad Conduct Discharge since his DD-214 states Good Conduct Medal period commences 990317.  The Applicant appears to have misunderstood the nature of this comment on his DD-214.  The entry on the Applicant’s DD-214 does not indicate he has received a Good Conduct Medal.  This entry is the result of misconduct for which the Applicant received a special court-martial.  This entry is made to document the beginning of a new period of good conduct at the end of which a service member would be eligible to receive the award after three years if completed without further misconduct.  The Applicant served for less than three years and was not eligible for a Good Conduct Medal.  The NDRB found the Applicant’s issue to be without merit for the purpose of establishing a basis for clemency.  An upgrade would be inappropriate.  

:  (Decisional) ()  .  The Applicant contends his discharge is improper, because his DD-214 states he was unavailable for signature.  The Applicant states he was never given the opportunity to confront his accusers or present his case for this charge.  The Applicant presented his case, along with counsel, at a special court-martial and was found guilty of the charges on 7 January 1999.  He was then sent home on appellant leave awaiting the review of his case by the Navy-Marine Corps Court of Criminal Appeals, which confirmed the convictions and ordered the Bad Conduct discharge to be carried out.  When the Marine Corps completed the Applicant’s final DD-214, the Applicant was at home and so was not available for signature.  The NDRB found this issue to be without merit for the purpose of establishing a basis for clemency.  An upgrade would be inappropriate.   

:  (Decisional) ()  .  The Applicant contends his discharge is inequitable, because he was on several pain medications, which should have been taken into account during separation proceedings.  Because relevant and material facts stated in a court-martial specification are presumed by the NDRB to be established facts, the NDRB found the Applicant’s issue to be without merit.  The NDRB is not authorized to re-adjudicate court-martial cases, and assumes court-martial proceedings and appellant review to be correct in law and fact.  There is no evidence of record to indicate the Applicant’s pain medications affected his misconduct in any way.  Nor did the Applicant provide any documentary evidence to support his contention.  The NDRB found clemency would be inappropriate.   

:  (Decisional) ()  .  The Applicant contends he suffered a broken foot, was denied proper medical care, and unfairly treated by his command.  The NDRB was unable to find any evidence in the record to support the Applicant’s contention.  Further, the Applicant provided no documentation or evidence to support his contention or to overcome the NDRB’s presumption of regularity in the conduct of governmental affairs.  The NDRB determined clemency would be inappropriate.    

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   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

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