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

Docket No. MD10-01933

ex-Pvt, USMC

Current Discharge and Applicant’s Request

Application Received:  20100727
Characterization of Service Received: (per DD 214) BAD CONDUCT DISCHARGE
Narrative Reason for Discharge: (per DD 214) 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: NONE REQUESTED

Summary of Service

Prior Service:
Inactive:	USMCR (DEP)	20021028 - 20021117  COG	Active:	NONE

Period of Service Under Review:
Date of Current Enlistment:  20021118	Age at Enlistment:  17 (PARENTAL CONSENT)
Period of Enlistment:  4 Years  0 Months
Date of Discharge:  20070425	Highest Rank:  LANCE CORPORAL
Length of Service:  03  Years  10  Months  03  Days
Education Level:  GED	AFQT:  52
MOS:  3521
Proficiency/Conduct Marks (# of occasions):  3.9 (NFIR) / 3.8 (NFIR)	Fitness Reports:  NOT APPLICABLE

Awards and Decorations (per DD 214):	Rifle MM, GWOTSM, NDSM, LOA

NJP:  1

- 20040809:	Article 86 (Absence without leave, failed to go at the time prescribed to appointed place of duty, 20040727)
	Awarded: FOP, RESTR, EPD     Suspended:  NONE

SCM:  NONE	CC:  NONE

SPCM:  1

- 20050711:	Article 81 (Conspiracy, 2 specifications, wrongfully received a forged medical prescription for Oxycontin from HM3, conspired with HM3 how and where to have prescription filled, rode with HM3 to have prescription filled, entered CVS and presented prescription to be filled, received sixty 40mg tablets of Oxycontin, entered Eckerd Drug Store and presented prescription to be filled, received sixty 40mg tablets of Oxycontin, gave HM3 some amount of the tablets, entered MCAS with the Oxycontin, used Oxycontin with HM3)
	Article 86 (Absence without leave, UA from unit PT formation on 20040525) 
	Article 92 (Failure to obey order or regulation, 5 specifications)
	Specification 1: Underage drinking
	Specification 2: Wrongful failing to maintain a proper shave
	Specification 3: Wrongful wearing of a tongue stud in mouth
	Specification 4: Wrongfully drove a privately owned vehicle after his driver’s license had been revoked by military and civilian officials
	Specification 5: Wrongful wearing of unauthorized jewelry pierced through both nipples
	Article 112a (Wrongful use, possession, etc., of controlled substance, 4 specifications)
	Specification 1: Wrongful use of Oxycontin
	Specification 2: Wrongful introduction of Oxycontin onto a military installation with intent to distribute
	Specification 3: Wrongful distribution of Oxycontin on 20040726
	
	Specification 4: Wrongful distribution of Oxycontin on 20040928
	Article 121 (Larceny and wrongful appropriation, 2 specifications)
	Specification 1: Stole sixty tablets of Oxycontin from CVS Drug Store on 20040726
	Specification 2: Stole sixty tablets of Oxycontin from Eckerd Drug Store on 20040928
	Article 134 (Disorderly conduct, wrongful ingestion of over-the-counter sleep aid causing him to be taken to the emergency room)
	Sentence: BCD, RIR E-1, FOP, CONF 11 months (20050318 - 20050927, 185 days)  
	Suspended:  Confinement in excess of 7 months

Retention Warning Counseling:  2

- 20030819:	For academic drop from AE course of instruction

- 20041018:	For having base driving privileges revoked for one year due to failure to appear at traffic court 

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 and Part V, Para 503, Equity.

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

Applicant’s Issues

1.	Decisional Issue:  The Applicant seeks clemency in the form of an upgrade to the characterization of his service at discharge contending that he was young and immature and made some bad decisions that he regrets.  The Applicant believes his post-service conduct is worthy of consideration for clemency.

Decision

Date:  20111109	     DOCUMENTARY REVIEW	    Location: Washington D.C.	    Representation: none

By a vote of 5-0 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 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 through the Delayed Entry Program at age 17 (with parental consent) on a four-year enlistment contract under guaranteed training in Aviation Electronics.  The Applicant’s enlistment record reflects his entry into military service with a waiver to enlistment and induction standards for pre-service illegal drug use (marijuana).  As a function of his enlistment contract, the Applicant acknowledged his complete understanding of the Marine Corps Policy Concerning the Illegal Use of Drugs - in writing - on 28 October 2002.  The highest rank achieved by the Applicant during his enlistment was E-3/Lance Corporal.  The Applicant’s record of service included two 6105 counseling warnings and one nonjudicial punishment (NJP) for the following violations of the Uniform Code of Military Justice (UCMJ): Article 86 (Absence without leave, failed to go at the time prescribed to appointed place of duty).  Moreover, the Applicant was subject to trial by special court-martial (SPCM) for the following violations of the UCMJ:

•	Article 81 (Conspiracy to commit violation of Article 112(a) and of Article 121)
•	Article 86 (Absence without leave)  
•	Article 92 (Failure to obey order or regulation, 5 specifications)
•	Article 112a (Wrongful use, possession, etc., of controlled substances, 4 specifications) 
•	Article 121 (Larceny and wrongful appropriation, 2 specifications) 
•	Article 134 (Disorderly conduct).

A qualified legal defense counsel represented the Applicant throughout his trial by Special Court-Martial.  The Applicant was tried in accordance with a signed pre-trial agreement in which he agreed to plead guilty in trial before a judge alone.  Given the facts of the case, the military trial judge awarded the Applicant a Bad Conduct Discharge, confinement for a period of 11 months, and a forfeiture of pay for 11 months; in accordance with the rules for courts-martial, reduction to the pay grade of E-1 was mandatory.  In accordance with the pre-trial agreement, the Convening Authority suspended all confinement in excess of seven months.  The case was submitted for review to the U.S. Navy–Marine Corps Court of Criminal Appeals without assignments of error; 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 effected on 25 April 2007.

Decisional Issue: (Clemency/Equity)  CLEMENCY NOT WARRANTED.  The Applicant’s service record documents a period of service of approximately one year and eight months prior to his misconduct that resulted in referral of charges for trial by Special Court-Martial.  In this short time span, the Applicant was academically disenrolled from his formal training school and received a nonjudicial punishment for unauthorized absence.  Additionally, he had his base driving privileges revoked, which limited his ability to drive motor transport assets as required by his military occupational specialty.  In addition to this pattern of misconduct, the Applicant conspired to forge and fill prescriptions for controlled substances (an opioid narcotic painkiller), stole those substances by fraud, used the controlled substance, and participated in the sale of the controlled substance aboard a military installation.  Due to the severity of the charges and the nature of the misconduct, the charges were referred to trial by court-martial.       

The NDRB recognizes that many of our service members are young at the time they enlist for service, however, most manage to serve their enlistments honorably.  While some members may be less mature than others, the NDRB does not view a member’s youth or immaturity to be a mitigating factor or a sufficient reason for misconduct, especially deliberate and repetitive misconduct.  Moreover, despite a servicemember’s prior record of service, certain serious offenses warrant separation from the Naval Service to maintain proper order and discipline.  The pattern of documented misconduct and general contempt for good order and discipline, coupled with the theft, use, and sale of illegal drugs, is not minor misconduct and supports the findings of the court-martial in awarding a Bad Conduct Discharge.  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 characterization was awarded.  His statement about remaining employed since his discharge does not show that the Applicant’s misconduct while in the Marine Corps was an aberration.  Given the short period of the Applicant’s service, coupled with the repetitive and extensive nature of the misconduct, the NDRB agreed unanimously that the punishment, as awarded, was warranted and was equitable; relief in the form of clemency is not warranted.

Summary:  After a thorough review of the available evidence, to include the Applicant’s summary of service, service record entries, the record of trial by Special Court-Martial, and the discharge process, the NDRB determined that clemency was not warranted.  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 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