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

Docket No. MD10-02099

ex-Pvt, USMC

Current Discharge and Applicant’s Request

Application Received:  20100824
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)	19990818 - 20000307  COG	Active:	NONE

Period of Service Under Review:
Date of Current Enlistment:  20000308	Age at Enlistment:  20
Period of Enlistment:  4 Years  0 Months
Date of Discharge:  20040206	Highest Rank:  PRIVATE
Length of Service:  03  Years  10  Months  30  Days
Education Level:  12	AFQT:  32
MOS:  0300
Proficiency/Conduct Marks (# of occasions):  NFIR / NFIR	Fitness Reports:  NOT APPLICABLE

Awards and Decorations (per DD 214):	Rifle MM

Periods of UA:  20000623 - 20000722 (30), 20000729 - 20001102 (94), 20001105 - 20010722 (257)

Period of Confinement:  20010725 - 20010821 (pre-trial - 30); 20010822 - 20010908 (14) 

NJP:  1

- 20000726:	Article 86 (Absence without leave 20000623 - 20000722 (30 days), terminated by surrender)
	Sentence: Restriction and Extra Punishment Duties for 14 days to run concurrently     Suspended: None		
SCM:  NONE 	CC:  NFIR	Retention Warning Counseling:  NFIR

SPCM:  1

- 20010822:	Article 86 (Absence without leave, UA, 20001105 - 20010722, 257 days)
	Sentence: FOP BCD CONF 75 days (20010725 - 20010908, 44 days)

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, and Para 503, Equity.

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

Applicant’s Issues

Nondecisional Issues:  The Applicant seeks an upgrade in the characterization of his service at discharge in order to facilitate employment opportunities.

Decisional Issues: The Applicant contends his discharge characterization of service was unjust, because he was under the assumption that he would receive the Military Occupational Specialty (MOS) of Postal Clerk, vice Infantry.

Decision

Date:  20111208	    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

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, as 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 20 on a four-year enlistment contract with an OPEN CONTRACT option; upon completion of Recruit Training, the Applicant was assigned the MOS of Infantry.  The highest rank achieved by the Applicant during his enlistment was E-1/Private.  The Applicant completed approximately 4 months of service before absenting himself from duty.  The Applicant’s record of service includes one nonjudicial punishment (NJP) for violations of the Uniform Code of Military Justice (UCMJ): Article 86 (Absence without leave, 20000623 - 20000722).  Moreover, the Applicant’s service record reflects a punitive conviction and punishment as adjudged by a Special Court-Martial on 22 August 2001.  The Applicant was subject to trial by Special Court-Martial for violation of Article 86 (Absence without leave, 20001105 - 20010908, 257 days, ended by apprehension by civilian law enforcement personnel).  A qualified legal defense counsel represented the Applicant during his trial by Special Court-Martial.  The Applicant was tried in accordance with a signed pre-trial agreement in which he pled guilty before a judge alone in return for a limitation on confinement.  Given the facts of the case, the military trial judge awarded the Applicant a Bad Conduct Discharge, a forfeiture of pay, and confinement for a period of 75 days.  The case was submitted for review to the U.S. Navy-Marine Corps Court of Criminal Appeals without assignments of error on 17 September 2003; it was reviewed and the findings were affirmed.  Subsequently, the Navy Marine Corps Appellate Leave Activity ordered the Bad Conduct Discharge executed on 05 February 2004.  The Applicant’s final discharge was effected on 06 February 2004.

Nondecisional Issue:  The Applicant seeks an upgrade in the characterization of his service at discharge in order to facilitate future employment opportunities.  There is no requirement, or law, that grants re-characterization solely on the issue of facilitating employment opportunities.  Regulations limit the NDRB’s review solely to a determination of clemency based on matters of equity of a discharge when considering a change to a punitive Bad Conduct Discharge.  As such, this issue does not serve to provide a foundation upon which the NDRB can grant relief.

Decisional Issue:  (Clemency/Equity)  RELIEF NOT WARRANTED.  The Applicant contends his discharge characterization of service was unjust, because he was under the assumption that he would receive the MOS of Postal Clerk.  The Applicant was in the Delayed Entry Program from 18 August 1999 until he took the oath of enlistment and shipped to Marine Corps Recruit Training on 08 March 2000.  During this time, the Applicant changed and canceled his enlistment options twice.  On 17 August 1999, the Applicant elected to enlist under an OPEN CONTRACT agreement that would provide for the service to determine his MOS based on the needs of the service.  On 08 March 2000, the Applicant amended his enlistment contract to reflect an MOS of Infantry; on that same day, he canceled his guarantee for Infantry training and again elected to enlist under an OPEN CONTRACT.  

Upon completion of Recruit Training, the Applicant was ordered to the School of Infantry for MOS training based on the needs of the service.  The Applicant’s service record documents his elections and cancelations of contracts and the Applicant’s initials and signatures that he understood his contractual obligations.  The Applicant may have been under the impression that he may be eligible for an MOS of Postal Clerk, but he enlisted as an OPEN CONTRACT, fully understanding that selection of his occupational specialty would be based on the needs of the service.  The government enjoys a presumption of regularity in the conduct of its affairs.  The Applicant bears the burden of overcoming this presumption through the presentation of substantial and credible evidence to support his issue.  There is no evidence in the record, nor has the Applicant produced any evidence, to support the contention that the recruiter misled him through the recruitment process.  The Applicant’s statements alone do not overcome the government’s presumption of regularity in this case.  However, even if the Applicant could show misrepresentations in the recruitment process, such misrepresentations would neither amount to a justification nor to a defense for the Applicant’s own misconduct.  Relief denied.

Due to the Applicant’s refusal to conform to the expected conduct of a United States Marine after administrative punishment and an opportunity to complete his training, coupled with the need to ensure good order and discipline of the service, the command referred the final unauthorized absence charge to trial by Special Court-Martial.  The stated misconduct resulted in the awarding of a punitive Bad Conduct Discharge, a forfeiture of pay, and confinement for a period of 75 days.  The NDRB found that the evidence of record, along with the Applicant’s statement and supporting documentation, did not contain sufficient mitigating or extenuating factors to offset the seriousness of the offenses for which the discharge was awarded.  Given the short period of the Applicant’s service, coupled with the repetitive and extensive nature of the misconduct, ended only by apprehension, the NDRB agreed unanimously that the punishment, as awarded, was warranted and was equitable; relief in the form of clemency is not warranted.  Relief denied.

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 is 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