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

Docket No. MD11-00292

ex-, USMC

Current Discharge and Applicant’s Request

Application Received:  20101112
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)	20001121 - 20010819  	Active:	

Period of Service Under Review:
Date of Current Enlistment:  20010820	Age at Enlistment:  
Period of Enlistment:   Years   Months
Date of Discharge:  20050413	Highest Rank:  
Length of Service:    Years    Months  25  Days
Education Level:  	AFQT:  45
MOS:  2311
Proficiency/Conduct Marks (# of occasions):   /  	Fitness Reports:  

Awards and Decorations (per DD 214):	Rifle MM, NDSM, GWOTEM, SSDR

Periods of UA:  

NJP:  NONE	SCM:  NONE		CC:  NONE 

SPCM:  1

- 20040615:	Article 128 (Assault, 2 specifications)
	Specification 1: Unlawfully choke his daughter, a child under sixteen years, by placing his right hand around her neck
	Specification 2: Unlawfully squeeze his daughter’s cheeks together, a child under the age of sixteen years
	Specification 3 and Specification 4 withdrawn based on pre-trial agreement.  
	Sentence: BCD, RIR to E-1, FOP, to be confined for 120 Days (20040615 - 20040802, 48 days) 

Retention Warning Counseling:  1

- 20020905:	For financial irresponsibility after writing two checks that were returned due to insufficient funds

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, Para 503, Equity.

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

Applicant’s Issues

Issue 1: The Applicant contends his characterization of service at discharge was inequitable; his youth and immaturity at the time led to poor judgment and is a mitigating factor to his misconduct of record.

Issue 2: The Applicant contends that his post-service efforts are worthy of consideration.

Decision

Date:  20120412	     	      Location: Washington D.C.	 Representation: NONE

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, as stated in a court-martial, are presumed by the NDRB, to be established facts.  Accordingly, the Applicant’s case was considered under the pertinent standards of equity to determine if any factors in this particular case merited clemency.  Matters of propriety are addressed through the Courts of Appeal as a function of the Applicant’s legal rights.  The Applicant’s service record documents that he entered military service at age 19 on a four-year enlistment contract under a Logistics Option training guarantee.  The Applicant’s enlistment record further reflects this entry into military service without any waivers to enlistment and induction standards.  The highest rank achieved by the Applicant during his enlistment was E-3/ Lance Corporal.  The Applicant completed 2 years and 10 months of his enlistment contract before being found guilty at a trial by Special Court-Martial.  The Applicant’s enlistment contains one retention-counseling warning and one punitive conviction and punishment as adjudged by a Special Court-Martial on 15 June 2004.  The Applicant was subject to trial for violation of Article 128 (Assault), two specifications of physical assault upon a child under the age of 16 (dependent daughter, age 2).  A qualified legal defense counsel represented the Applicant throughout his trial by Special Court-Martial.  Given the facts of the case, the military trial judge awarded the Applicant a Bad Conduct Discharge, forfeiture of pay, reduction in rank to E-1, and confinement for a period of 120 days.  The Applicant was tried in accordance with a signed Pre-Trial Agreement (PTA) in which he agreed to plead guilty and accept trial by judge alone in exchange for leniency by the convening authority on matters of sentencing (withdrawal of other specifications of the Assault charge, no more than 60 days confinement, and waiver of automatic forfeitures for dependent financial care purposes).  The case was submitted for review to the U.S. Navy-Marine Corps Court of Criminal Appeals without assignment of error; the case was reviewed and the findings were affirmed on 28 January 2005.  The Secretary of the Navy Clemency and Parole Board reviewed the results of the Applicant’s court-martial and determined that clemency was not warranted.  Subsequently, the Navy Marine Corps Appellate Leave Activity ordered the Bad Conduct Discharge executed.  The Applicant’s final discharge was effected on 13 April 2005. 

Issue 1: (Decisional) (Clemency/Equity)  CLEMENCY NOT WARRANTED.  The Applicant contends his characterization of service at discharge was inequitable; his youth and immaturity at the time led to poor judgment and, as such, is a mitigating factor to his misconduct of record.  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 violent misconduct.  Moreover, the NDRB recognizes that serving in the military is challenging; however, most service members serve honorably and therefore earn their Honorable discharges.  In fairness to those service members, commanders and separation authorities are tasked to ensure that undeserving Marines receive no higher characterization than is due.  There is no evidence in the record, nor did the Applicant provide any documentation, to indicate he attempted to utilize the numerous services available for service members who undergo personal problems during their enlistments, such as the Navy Chaplain, Mental Health professionals, Navy Relief Society, or Family Advocacy Programs.  The NDRB determined the Applicant’s youth, immaturity, and personal problems were not mitigating factors in his misconduct.
Despite a service member’s prior record of service, certain serious offenses, though isolated, warrant separation from the Naval Service in order to maintain good order and discipline.  Violation of Article 128 is one such offense, warranting processing for administrative separation, regardless of grade, combat experience, or time in service.  This action may result in an unfavorable characterization of service at discharge or, at a maximum, a punitive discharge with the possibility of confinement, if adjudicated and awarded as part of a sentence by a Special or General Court-Martial.  Given the Applicant’s physical assault upon a child under the age of 16, the command opted to pursue discharge via punitive court-martial vice the more lenient administrative separation process.  The Applicant was tried before a judge alone; he pled guilty to the charges as agreed upon in the PTA and specified on the court-martial charge sheet - all remaining charges were withdrawn.  The Military Judge found the Applicant guilty of the offenses, as charged, based on the Applicant’s testimony and awarded him the Bad Conduct Discharge and reduction to Private/E-1 along with confinement for 120 days.  

Issue 2: (Decisional) (Clemency/Equity)  CLEMENCY NOT WARRANTED.  The Applicant contends his post-service conduct warrants consideration for an upgrade to Honorable.  There is no law or regulation to upgrade an unfavorable discharge based solely on the passage of time or good conduct in civilian life subsequent to leaving the service.  However, the NDRB is authorized to consider outstanding post-service factors in the re-characterization of a discharge to the extent that such matters provide a basis for a more thorough understanding of the Applicant’s performance and conduct during the period of service under review.  The Applicant should be aware, though, that submission of these items alone does not guarantee an upgrade from an unfavorable discharge as each discharge is reviewed by the NDRB on a case-by-case basis.  The Applicant submitted two letters of character reference.  After a careful review of the Applicant’s post-service documentation (character references and volunteerism efforts), coupled with his official service record, and taking into consideration his statements, the testament of his character witnesses, and the facts and circumstances unique to this case, the NDRB determined the quality of the Applicant’s service did not meet the standard of acceptable conduct and performance for Naval personnel to warrant an Honorable characterization.

The NDRB determined that the Applicant’s misconduct of record was conduct involving one or more acts or omissions that did constitute a significant departure from the conduct expected of members of the Naval Service.  Furthermore, the NDRB found the evidence of record did not contain sufficient mitigating or extenuating factors to offset the seriousness of the offense for which the discharge was awarded.  Given the circumstances of the case, coupled with the nature of the misconduct and the standards and norms of the service, the NDRB determined that the punishment as awarded by the military trial judge was equitable and was consistent with the characterization of discharge given others in similar circumstances.  Accordingly, the reason for discharge is most appropriate.  After a thorough review of the Applicant’s record, issues submitted, and post-service accomplishments, the NDRB determined that clemency was not warranted and that the sentence awarded the Applicant at his court-martial was appropriate for the offenses he committed.  Relief denied.

Summary:  After a thorough review of the available evidence, to include the Applicant’s summary of service,  record entries, post service documents, the 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), 701 South Courthouse Road, Suite 1001, Arlington, VA 22204-2490 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