ex-, USMC

Current Discharge and Applicant’s Request

Application Received:  20100706
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)	19840926 - 19850206  	Active:	  19850207 - 19880706  
				  19880707 - 19911007  
				  19911008 - 19960307  
				  19960308 - 19971113  

Period of Service Under Review:
Date of Current Enlistment:  19971114	Age at Enlistment:  
Period of Enlistment:   Years   Months
Date of Discharge:  20030627	Highest Rank:  
Length of Service:    Year(s)    Month(s)  14  Day(s)
Education Level:  	AFQT:  52
MOS:  3043/8411
Fitness Reports:  

Awards and Decorations (per DD 214):	Rifle  (2) Pistol ,  (5)

Periods of UA/CONF:  

NJP:  	SCM:  		 CC:  	Retention Warning Counseling:  

SPCM:  

- 20010626:	Article  (Larceny), 12 specifications
	Article  (Wrongfully obtain AT&T telephone services)
	Sentence: 
	CA: The approved sentence to a Bad Conduct Discharge, as promulgated in Commander, 1st Marine Division (REIN), Camp Pendleton, CA

Administrative Corrections to the Applicant’s DD 214

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

	 Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, should read:  “Rifle Expert Badge (2nd Award), Pistol Marksman Badge, Marine Corps Good Conduct Medal (4), National Defense Service Medal, Sea Service Deployment Ribbon, Marine Corps Recruiting Ribbon, Navy Meritorious Unit Commendation Ribbon (2), Navy Unit Commendation Ribbon ”

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 P1900.16F), 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

Decisional issues: The Applicant seeks clemency: It has been 11 years since the Special Court-Martial conviction and the Applicant contends that the Bad Conduct Discharge was overly harsh and has prevented him from being able to reenter society effectively. 

Decision

Date:  20111013	            	Location: Washington D.C.	 Representation: 

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

Discussion

In reviewing discharges, the NDRB 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 are presumed, by the NDRB, to be established facts.  As such, 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 service record indicates he entered military service at age 17 on a four-year enlistment contract with guaranteed training in Supply Administration.  The Applicant honorably completed four enlistment periods prior to his enlistment period that contained the misconduct of record.  The highest rank achieved by the Applicant during his enlistment was E-6/Staff Sergeant, though he was selected for promotion to E-7/Gunnery Sergeant prior to referral of charges to Special Court-Martial.  The Applicant’s service record reflects a punitive conviction and punishment as adjudged by a Special Court-Martial on 21 April 2000.  The Applicant was subject to trial by Special Court-Martial for violation of the UCMJ as follows: Article 121 (Larceny – 12 specifications of wrongfully appropriating military equipment) and Article 134 (Wrongful appropriation of services).  A qualified legal defense counsel represented the Applicant throughout the trial by Special Court-Martial.  Given the facts of the case, the trial judge awarded the Applicant a Bad Conduct Discharge.  The case was submitted for review to the U.S. Navy–Marine Corps Court of Criminal Appeals; it was reviewed and the findings were affirmed.  Subsequently, the Navy Marine Corps Appellate Leave Activity ordered the Bad Conduct Discharge executed.  The Applicant’s final discharge was effective on 27 June 2003.

Decisional Issue:  (Clemency) – RELIEF NOT WARRANTED.  The Applicant seeks clemency: It has been 11 years since the Special Court-Martial conviction and the Applicant contends that the Bad Conduct Discharge was overly harsh and has prevented him from being able to reenter society effectively.  The NDRB conducted a thorough review of the Applicant’s discharge under the pertinent standards of equity to determine if any factors in this particular case merited clemency.  The Applicant’s service record documents a period of service of approximately 15 years and 2 months in which time he was subject to one Nonjudicial Punishment and one trial by Special Court-Martial.  The Applicant completed his first four enlistment periods with an Honorable characterization of those periods of service, however, each period of enlistment is an independent obligation, and characterization of service is determined for that specific period.  The Applicant’s documented misconduct during his current period of enlistment includes 12 specifications of wrongful appropriation and 1 specification of wrongful appropriation of services while assigned as a unit supply chief assigned to independent duty.  Due to the Applicant’s deliberate misappropriation of government equipment and services, and the detrimental effect to the good order and discipline of the service, the Command referred the charges for trial by court-martial.  The stated misconduct resulted in a Special Court-Martial awarding a punitive Bad Conduct Discharge, which also resulted in a compensatory automatic reduction in grade to Private.    

Clemency is an act of leniency that reduces the severity of the punishment imposed.  Despite a servicemember’s prior record of service, certain serious offenses warrant separation from the service in order to maintain good order and discipline.  By virtue of his rank and time in service, the Applicant was vested with special trust and confidence of the service, and his command, to maintain the accountability of assets, enforce those policies necessary to ensure that accountability, and to execute the 

organization’s fiscal contracts and expenditures properly, thus ensuring good stewardship of the taxpayers’ dollars.  The Applicant violated these trusts and responsibilities with 12 specifications of larceny and 1 specification of wrongfully contracting services.  Given his rank, training, and time in service, the Applicant was fully aware of the wrongfulness of his conduct and that the service must hold him accountable in order to ensure the integrity of the system.  The theft or misappropriation of organizational equipment for personal gain or profit is not minor misconduct and warrants punitive disciplinary action, especially for those charged with ensuring accountability within the system.  The NDRB found that the evidence of record, along with the Applicant’s statement, did not contain sufficient mitigating or extenuating factors to offset the seriousness of the offenses for which the discharge was awarded.  Accordingly, relief is denied   

Summary:  After a thorough review of the available evidence, to include the Applicant’s summary of service,  record entries, the verbatim transcript record of trial by Special Court-Martial, and the discharge process, the NDRB determined that  Therefore, the awarded characterization of service shall  BAD CONDUCT DISCHARGE, 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 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