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

Docket No. MD10-02235

ex-Pvt, USMC

Current Discharge and Applicant’s Request

Application Received:  20100913
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: HONORABLE
	Narrative Reason change to: NONE REQUESTED

Summary of Service
Prior Service:
Inactive:	USMCR (DEP)	19900531 - 19910610  COG	Active:	USMC	19910611 - 19941026  HON
				USMC	19941027 - 19980518  HON
				USMC	19980519 - 20010606  HON
				USMC	20010607 - 20050224  HON
Period of Service Under Review:
Date of Current Enlistment:  20050225	Age at Enlistment:  32
Period of Enlistment:  4 Years  0 Months
Date of Discharge:  20071205	Highest Rank:  STAFF SERGEANT
Length of Service:  02  Year(s)  09  Month(s)  11  Day(s)
Education Level:  12	AFQT:  58
MOS:  2111 / 8411
Fitness Reports:  AVAILABLE
Awards and Decorations (per DD 214):	Rifle EX (5) Pistol SS GCM (4) NMCAM (2) MOVSM GWOTSM NDSM SSDR NUC CoC (2) CoC (5) MM (3) LoA (2) CoA
Periods of UA:  NONE

NJP:  NONE	SCM:  NONE		CC:  NONE		Retention Warning Counseling:  NONE

SPCM:  1
- 20060405:	Article 90 (Willfully disobey a lawful command)
	Article 92 (Failure to obey a lawful order or regulation), 2 specifications
	Specification 1: Wrongfully engaging in nonprofessional social and/or sexual relationships
	Specification 2: Wrongfully using federal government vehicle for unauthorized purposes
	Article 134 (General order), 3 specifications
	Specifications 1 and 2: Wrongfully have sexual intercourse with a woman not his wife
	Specification 3:  Wrongfully endeavor to impede an investigation and influence the testimony of a Private by stating to the Private “Do not say anything about what happened at the Novi recruiting office:”
	Sentence: CONF FOR 60 DAYS RIR E-1 BCD
	CA Action:  Sentence is approved and, except for the part of the sentence extending to a bad conduct discharge will be executed, but the execution of that part of the sentence adjudging confinement, is suspended for the period of actual confinement served plus a period of 12 months thereafter.

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.

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

Applicant’s Issues

1.	The Applicant requests clemency based on his in-service accomplishments.
2.	The Applicant requests consideration for clemency based on his post-service conduct.

Decision

Date:  20110831	PERSONAL APPEARANCE HEARING	Location:  Washington D.C.     Representation:  Disabled American Veterans

By a vote of 4-1 the Characterization shall remain BAD CONDUCT.
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 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 one special court-martial (SPCM) for violations of the UCMJ: Article 90 (Willfully disobey a lawful command, 1 specification), Article 92 (Failure to obey an order or regulation, 2 specifications), Article 134 (General, 3 specifications: Wrongfully have sexual intercourse with a woman not his wife, Wrongfully endeavor to impede an investigation and influence the testimony of another Marine).  Based on the Applicant’s conviction at special court-martial, and following appellant review, he was separated with a Bad Conduct Discharge.

Issue 1:  (Decisional) (Clemency)  RELIEF NOT WARRANTED.  The Applicant requests clemency based on his in-service accomplishments.  The record shows the Applicant was an outstanding Marine prior to his misconduct.  The NDRB recognizes the Applicant’s prior enlistments as honorable and commendable.  However, the severity of the Applicant’s misconduct and the potential for discrediting the Marine Corps in the public eye and hampering future recruiting efforts in the region cannot be overcome by his accomplishments in prior enlistments.  Therefore, the NDRB determined clemency is not warranted for this issue.

Issue 2:  (Decisional) (Clemency)  RELIEF NOT WARRANTED.  The Applicant requested the NDRB consider his post-service conduct as a basis to gain a more thorough understanding of his performance and conduct during the period of service under review.  The Applicant submitted limited documentation of his post-service activities, and testified under oath before the NDRB.  The NDRB carefully considered the Applicant’s testimony and documentation of post-service activities.  It appears the Applicant has made significant strides in repairing his life and is a contributing member of society.  However, the Applicant’s post-service documentation efforts needed to be more encompassing.  The NDRB found the Applicant’s post-service conduct, as presented to the board, to be insufficient to overcome the significant misconduct of record.  Clemency is not warranted in this case.

Summary:  After a thorough review of the available evidence, to include the Applicant’s summary of service, service record entries, and discharge process, the Board found the discharge was proper and equitable.  Therefore, the awarded characterization of service shall remain BAD CONDUCT and the narrative reason for separation shall remain COURT-MARTIAL.

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