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

Docket No. MD10-02106

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: (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: NONE REQUESTED

Summary of Service
Prior Service:
Inactive:	USMCR (DEP)	19920812 - 19920909  COG	Active:	NONE

Period of Service Under Review:
Date of Current Enlistment:  19920910	Age at Enlistment:  21
Period of Enlistment:  4 Years  0 Months
Date of Discharge:  19970805	Highest Rank:  PRIVATE FIRST CLASS
Length of Service:  04  Years  10  Months  26  Days
Education Level:  12	AFQT:  57
MOS:  0300
Proficiency/Conduct Marks (# of occasions):  NFIR / NFIR	Fitness Reports:  NOT APPLICABLE

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

Periods of Unauthorized Absence:  930207 - 930308 (31 days); 930310 - 930314 (4 days); 930401 - 930512 (42 days); 930513 - 960409 (1,117 days)

Periods of Confinement:  19960411 - 19960506 (26 days Pre-trial confinement); 19960507 - 19960523 (17 days confinement)

NJP:  1

- 19930331:	Article 86 (Absence without leave, UA, 19930310 - 19930315, 5 days)
	Awarded:  RIR, FOP, RESTR     Suspended:  RESTR

SCM:  NONE	CC:  NONE 	Retention Warning Counseling:  NONE 

SPCM:  1

- 19960507:	Article 86 (Absence without leave), 2 specifications
	Specification 1: UA, 19930401 – 19930512 (42 days) terminated by surrender
	Specification 2: UA, 19930513 – 19960409 (1117 days) terminated by civilian law enforcement apprehension and return to military authority
	Sentence: FOP BCD CONF 4 months (19960411 – 19960523, 43 days)

Administrative Corrections to the Applicant’s DD 214

The NDRB noted an administrative error on the original DD Form 214:

	Block 28, Narrative Reason for Separation, should read: “COURT-MARTIAL”
Block 29, Dates of Time Lost During This Period, should read “(31) 930207 - 930308, (4) 930310 - 930314, (42) 930401 - 930512, (1117) 930513 - 960409, (43) 960411 - 960523”

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.

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

Applicant’s Issues

Decisional Issues:  The Applicant seeks clemency of his punitive discharge, contending his youth, immaturity, and personal problems were mitigating factors in his misconduct and that he is now a model citizen. 

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 21 on a four-year enlistment contract under the Infantry training option  The Applicant’s enlistment record reflects his entry into military service with waivers to enlistment and induction standards due to pre-service illegal drug usage (marijuana).  The highest rank achieved by the Applicant during his enlistment was E-2/Private First Class.  The Applicant’s record of service includes no retention-counseling warnings and one nonjudicial punishment for violations of the Uniform Code of Military Justice (UCMJ): Article 86 (Absence without leave 19930310 - 19930314).  Moreover, the Applicant’s service record reflects a punitive conviction and punishment as adjudged by a Special Court-Martial on 07 May 1996.  The Applicant was subject to trial by Special Court-Martial for violation of Article 86 (Absence without leave, 19930401-19930512 (42 days, terminated by surrender) and 19930513-19960409 (1,117 days, terminated by apprehension by civilian law enforcement personnel).  The Applicant’s service record also reflects another period of unauthorized absence from 19930207 to 19930308 (31 days), which was not adjudicated in any administrative or judicial proceedings.  A qualified legal defense counsel represented the Applicant throughout his trial by Special Court-Martial process.  Given the facts of the case, the Special Court-Martial awarded the Applicant a Bad Conduct Discharge and confinement for a period of 4 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 05 August 1997.  

Decisional Issue:  (Clemency/Equity)  RELIEF NOT WARRANTED.  The Applicant seeks clemency of his punitive discharge, contending his youth, immaturity, and personal problems were mitigating factors in his misconduct and that his post-service accomplishments as a model citizen are worthy of consideration.  The Applicant’s service record documents a period of service of approximately 5 months of active honorable service prior to absenting himself from his unit.  The Applicant absented himself, without authority from his military occupational specialty training school, for 31 days, returned, and then immediately absented himself again for 4 days.  He was seen at a Commanding Officer’s nonjudicial punishment proceeding for these absences.  Fifteen days later, the Applicant violated his assigned restriction order and absented himself from his unit for 42 days; he surrendered himself to military authority and then immediately departed on an unauthorized absence period again – this time terminated by apprehension by civilian law enforcement personnel who returned the Applicant to military authority.  The Applicant’s misconduct documents a pattern of misconduct related to unauthorized absence and a general failure to conform to military rules and regulations with an intent to remain absent and avoid his military duties.  Due to the Applicant’s refusal to conform to the expected conduct of a United States Marine after administrative punishment and counseling, coupled with the need to ensure good order and discipline of the service, the command referred the final periods of unauthorized absence to a trial by Special Court-Martial.  The stated misconduct resulted in the awarding of a punitive Bad Conduct Discharge and confinement for a period of 4 months.  The service record documents that the convening authority agreed to limit the period of confinement to no longer than 23 May 1996.  The Applicant was released from his adjudicated confinement sentence and placed on appellate leave, pending final appellate review of the punitive Bad Conduct Discharge.    

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 of the nature specified.  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 unauthorized absences and general contempt for good order and discipline 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 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, was equitable, was, and remains, a proper reflection of the Applicant’s service and reason for discharge; as such, 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