Title: DEPARTMENT OF THE NAVY
Author: CAP
Last saved by: nuchy.garcia-anglin
Company: NCPB

Docket No. MD12-01460

ex-Pvt, USMC

Current Discharge and Applicant’s Request

Application Received:  20120628
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 OR GENERAL (UNDER HONORABLE CONDITIONS)
	Narrative Reason change to: NONE REQUESTED
	
Summary of Service

Prior Service:
Inactive:	USMCR (DEP)	19961230 - 19970203  COG	Active:	NONE

Period of Service Under Review:
Date of Current Enlistment:  19970204	Age at Enlistment:  21
Period of Enlistment:  4 Years  0 Months
Date of Discharge:  20020426	Highest Rank:  CORPORAL
Length of Service:  04  Year(s)  11  Month(s)  24  Day(s)
Education Level:  14	AFQT:  52
MOS:  2512
Proficiency/Conduct Marks (# of occasions):  4.6 / 4.2	Fitness Reports:  NOT APPLICABLE

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

NJP:  NONE	CC:  NONE		Retention Warning Counseling:  NONE

SCM:  1

- 19990701:	Article 128 (Assault)
	Sentence: RESTR

SPCM:  1

- 20000329:	Article 86 (Absence without leave, 2 specifications)
	Specification 1: From appointed place of duty, 20000211
	Specification 2: 20000211 until 20000218, 8 days
	Article 128 (Assault, 2 specifications)
	Specification 1: B__ W__ between 19990901 and 19991031
	Specification 2: B__ W__ on 20000210 
	Sentence: CONF 4 months (Pre-trial: 20000219-20000329, 39 days) (Conf: 20000329-20000421, 23 days) RIR E-1 FOP BCD

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:	☒

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

Applicant’s Issues

1.	The Applicant seeks an upgrade to qualify for education benefits and employment opportunities.
2.	The Applicant contends his misconduct was due to youth and immaturity.
3.	The Applicant contends his misconduct was an isolated incident in an otherwise honorable period of service.
4.	The Applicant contends his post-service accomplishments are worthy of an upgrade.
5.	The Applicant contends he was involved in an altercation that was subsequently determined to be self-defense and all charges were dismissed.  He contends his command was not satisfied, in an effort to retaliate against him called him to the command office at the end of the day but forgot about him, and once he realized this he left the premises but was charged with being in an unauthorized absence status. 

Decision

Date:  20130426	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
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 governmental 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 summary court-martial (SCM) for violation of the Uniform Code of Military Justice (UCMJ): Article 128 (Assault, 1 specification) and one special court-martial (SPCM) for violations of the UCMJ: Article 86 (Absence without leave, 2 specifications) and Article 128 (Assault, 2 specifications).  As a result of guilty findings at a Special Court-Martial, the Applicant received a Bad Conduct Discharge.

Issue 1:  (Nondecisional)  The Applicant seeks an upgrade to qualify for education benefits and employment opportunities.  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 re-characterization solely on the issue of obtaining veterans benefits.  Furthermore, 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.

Issue 2:  (Decisional) (Clemency)  RELIEF NOT WARRANTED.  The Applicant contends his misconduct was due to youth and immaturity.  While the Applicant may feel his youth and immaturity were the underlying causes of his misconduct, the record clearly reflects his willful misconduct and demonstrated he was unfit for further service.  The evidence of record does not demonstrate the Applicant was not responsible for his conduct or that he should not be held accountable for his actions.  The NDRB recognizes that many of our service members are young at the time they enlist for service, however, most still manage to serve honorably.  While some members may be less mature than others, the NDRB does not view a member’s claim of immaturity to be a mitigating factor or a sufficient reason for misconduct.  Clemency denied.

Issue 3:  (Decisional) (Clemency)  RELIEF NOT WARRANTED.  The Applicant contends his misconduct was an isolated incident in an otherwise honorable period of service.  The Applicant’s misconduct was not isolated.  Two and a half years into his enlistment, the Applicant was found guilty of assault at a Summary Court-Martial.  His command, however, did not discharge him for Misconduct (Serious Offense) but allowed him to continue his service.  Nine months later, the Applicant was convicted at a Special Court-Martial for two specifications of violating UCMJ Article 86 (Unauthorized absence from being at appointed place of duty and for 8 eight days) and two specifications of violating UCMJ Article 128 (Assault).  This conviction resulted in a Bad Conduct Discharge.  The NDRB determined clemency was not warranted for this issue.  Clemency denied.

The Applicant also contends he was awarded a Good Conduct Medal.  This is incorrect.  A Good Conduct Medal is awarded after three years of continuous service without misconduct.  The Applicant was convicted at a Summary Court-Martial after only 2 ½ years of service and so never earned a Good Conduct Medal.  The confusion likely arose from Block 18 on his DD Form 214, which restarts the Good Conduct Medal three-year counter by listing the date of his last misconduct.

Issue 4:  (Decisional) (Clemency)  RELIEF NOT WARRANTED.  The Applicant contends his post-service accomplishments are worthy of an upgrade.  The NDRB is authorized to consider post-service factors in the re-characterization of a discharge.  However, there is no law, or regulation, that provides that an unfavorable discharge may be upgraded based solely on the passage of time or good conduct in civilian life subsequent to leaving the service.  Normally, to permit relief, a procedural impropriety or inequity must have been found to exist during the period of enlistment in question.  Besides the Applicant’s statement on the DD Form 293, he failed to provide any documentary evidence on his behalf for post-service consideration.  The Applicant could have provided documentation as detailed in the Post-Service Conduct paragraph in the Addendum with the recognition that completion of these items alone does not guarantee an upgrade from an unfavorable discharge as each discharge is reviewed by the Board on a case by case basis to determine if post-service conduct establishes that the in-service misconduct was an aberration.  Without post-service documentary evidence, the Board determined clemency was not warranted for this issue.  Clemency denied.

Issue 5:  (Decisional) (Clemency)  RELIEF NOT WARRANTED.  The Applicant contends he was involved in an altercation that was subsequently determined to be self-defense and all charges were dismissed.  He contends his command was not satisfied, in an effort to retaliate against him called him to the command office at the end of the day but forgot about him, and once he realized this he left the premises but was charged with being in an unauthorized absence status.  His statement does not match the record of testimony.  In accordance with Secretary of the Navy Instruction 5420.174D of 22 December 2004, relevant and material facts as stated in a court-martial are presumed by the NDRB to be established facts.  As such, matters of propriety related to the conduct of a punitive court-martial (e.g., Special Court-Martial) are addressed through the appellate review process by the Navy-Marine Corps Court of Criminal Appeals or through further petitioning for a review by the Court of Appeals of the Armed Forces.  The Applicant’s appellate rights statement and certification of his acknowledgment of those rights, which detail this process, are appended to the verbatim record of trial by court-martial.  In the Applicant’s case, the Navy-Marine Corps Court of Criminal Appeals reviewed the case and affirmed the decision.  As such, the NDRB cannot overturn or question the guilty verdict from the Applicant’s Special Court-Martial for being UA and assault.  The NDRB determined clemency was not warranted on this issue.  Clemency denied.

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 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 for additional information.

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 502, Propriety and Para 503, Equity.

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 	RESTR - Restriction	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	CBW - 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