ex-, USMC

Current Discharge and Applicant’s Request

Application Received:  20110121
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)	20010119 - 20010129  	Active:	

Period of Service Under Review:
Date of Current Enlistment:  20010130	Age at Enlistment:  
Period of Enlistment:   Years   Months
Date of Discharge:  20060630	Highest Rank:  
Length of Service:    Year(s)    Month(s)  00  Day(s)
Education Level:  	AFQT:  56
MOS:  0311
Proficiency/Conduct Marks (# of occasions):  / 	Fitness Reports:  

Awards and Decorations (per DD 214):	Rifle  (2), , , MCEM,  (2), , -N

Periods of Unauthorized Absence (UA).  20040504 - 20060613 (770 days) - un-adjudicated absence / member dropped from unit roles and declared a deserter
  
NJP:  	SCM:   	CC:  	Retention Warning Counseling:  

SPCM:  

- 20040401:	Article  (Wrongful use, possession, etc., of a controlled substance - wrongful use of methamphetamine on or about 20031012)
	Article  (Absence without leave - Absented himself from his unit, without authority, from 20031015 and remained so absent until 20040222 (132 days) - absence terminated by surrender to local civilian law enforcement authorities)
	Sentence Adjudged: , , To be  confined for 45 days (Pre-trial Confinement - 39 days: In Hands of Civilian Authorities (IHCA) from 20040222-20040225 (3 days) and Military Brig Pre-trial confinement from 20040226-20040331 (36 days)) 
	Convening Authority Action:  The sentence is approved and, except for the bad conduct discharge, ordered executed.
	
Administrative Corrections to the Applicant’s DD 214
The NDRB did note administrative error(s) on the original DD Form 214:

  “05 05 00”
	  “MARCORSEPMAN 1105”
	  “JJE2”
	  “COURT-MARTIAL”
  “20031015-20040222 (132); 20040222-20040225 (3) 20040226-20040331 (36); 20040504- 20060613 (770) days”

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 P1900.16F), 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, Para 503, Equity.

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

Applicant’s Issues

Issue 1:  The Applicant seeks clemency, contending that his characterization of service at discharge was inequitable; his youth, immaturity, and ongoing personal circumstances at the time led to poor judgment and are mitigating factors to his misconduct of record.
Decision

Date:  20120419	     	     Location: Washington D.C.	       Representation: 

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.  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.  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.  The Applicant’s enlistment record reflects his entry into military service with a dependency waiver to enlistment and induction standards.  The highest rank achieved by the Applicant during his enlistment was E-4/Corporal.  The Applicant’s service record documents a punitive conviction and punishment as adjudged by a Special Court-Martial on 01 April 2004.  The Applicant was tried by Special Court-Martial for violation of Article 86 (Unauthorized Absence; absented himself from his unit for 132 days, absence terminated by surrender to local law enforcement authorities) and Article 112(a) (Wrongful use of a controlled substance - methamphetamines).  A qualified legal defense counsel represented the Applicant during his trial by Special Court-Martial.  Given the facts of the case, the trial judge awarded the Applicant a Bad Conduct Discharge and confinement for a period of 45 days.  The Applicant was tried in accordance with a signed pre-trial agreement in which he agreed to plead guilty and accept trial by judge alone in exchange for leniency on matters of sentencing (confinement no greater than 60 days).  The Applicant was released from confinement having served his required sentence through pre-trial confinement credit.  Thirty-four days later, the Applicant again absented himself from his unit; the Applicant was subsequently dropped from his unit’s rolls after 30 days of continued absence and was declared a Deserter.  Due to the conviction and discharge authorization already in place, the Applicant’s record was forwarded to Headquarters Marine Corps Declared Deserter Branch for administration, should the Applicant be apprehended or surrender himself to military custody.  The completed Special Court-Martial case was submitted for review to the U.S. Navy-Marine Corps Court of Criminal Appeals without assignment of error; it was reviewed and the findings were affirmed.  Subsequently, the Navy Marine Corps Appellate Leave Activity ordered the Bad Conduct Discharge executed and forwarded the results to the Declared Deserter Branch for the authority to discharge the Applicant upon resolution of his current desertion status.  The Applicant’s final discharge was effective 30 June 2006 after his surrender to the Marine Corps Absentee Collection Unit and return to military custody.

Issue 1: (Decisional) (Clemency)  CLEMENCY NOT WARRANTED.  The Applicant seeks clemency, contending that his characterization of service at discharge was inequitable; his youth, immaturity, and ongoing personal circumstances at the time led to poor judgment and are mitigating factors to his misconduct of record.  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; matters of propriety are decided and upheld through the appellant’s right to legal review process - the Navy and Marine Corps Court of Criminal Appeals and the Court of Appeals of the Armed Forces.  As such, matters of propriety are not within the authority of the NDRB in relation to punishment as adjudged in a punitive trial by court-martial.  The NDRB, however, did conduct a thorough review of the Applicant’s discharge under the pertinent standards of equity to determine if any factors in this particular case merited clemency.  The Applicant’s service record documents a period of service of approximately 2 years and 9 months before testing positive for a controlled substance (methamphetamines) and then absenting himself from his unit for 132 days.  Due to the Applicant’s refusal to conform to the expected standards and conduct of a United States Marine - coupled with the need to ensure good order and discipline of the service - the Command referred the charges to trial by Special Court-Martial upon the Applicant’s return to military custody.  After release from confinement, and while pending assignment to appellate leave, the Applicant again absented himself from his unit for a period of 770 days.  His Bad Conduct Discharge sentence was appealed in his absence and upheld by the Appellate Court review.

The Applicant seeks a change in the characterization of his service at discharge to General (Under Honorable Conditions).  Despite a servicemember’s prior record of service, certain serious offenses, even though isolated, warrant separation from the Marine Corps to maintain good order and discipline.  Violation of Article 86 (in excess of 30 days) and Article 112a are such offenses.  Moreover, violation of Article 112a requires mandatory processing for administrative separation regardless of grade, performance, or time in service.  This action usually results in an unfavorable characterization of service at discharge or, at a maximum, a punitive discharge, and possible confinement if adjudicated and awarded as part of a sentence by a special or general court-martial.  In the Applicant’s case, the command originally opted to pursue the more lenient nonjudicial punishment and processing for administrative discharge following the illegal drug use identification.  However, while pending processing for separation, the Applicant absented himself from his assigned unit for a period of 132 days.  Upon the Applicant’s return to military custody, he was ordered to pre-trial confinement, pending trial by Special Court-Martial.  Referral of charges to trial by Special Court-Martial was proper, was within the Command’s authority, and was consistent with service norms.

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, the NDRB recognizes that serving in the military is challenging.  In fairness to those service members, commanders and separation authorities are tasked to ensure that undeserving Sailors and 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 enlistment such as the Navy Chaplain, Mental Health professionals, Navy Relief Society, Substance Abuse Counseling Centers, or Family Advocacy Programs.

The NDRB found that the evidence of record, along with the Applicant’s statement and testimony during the trial, 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 deliberate 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,  record entries, the verbatim 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