ex-, USMC

                  Current Discharge and Applicant’s Request

Application Received:  20081024
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)      NFIR - 20020812       Active:

Period of Service Under Review:
Date of Enlistment:  20020813     Age at Enlistment:
Period of Enlistment:   Years   Months
Date of Discharge:  20080418 Highest Rank:
Length of Service:    Year(s)    Month(s)  6  Day(s)
Education Level:  NFIR AFQT:  41
MOS:  1171
Proficiency/Conduct Marks (# of occasions):  3.8 (NFIR) / 3.7 (NFIR)
Fitness Reports:

Awards and Decorations (per DD 214):    Rifle  Pistol

Periods of UA/CONF: 130 days confinement

NJP:
    - 20030724:  Article 86 (UA), 20030706 – 20030707 (2 days)
      Article 92 (Failure to obey a lawful order)
      Awarded:    Suspended:

SCM:        CC:

SPCM:
    - 20060727:  Article 91 (Disrespect towards a superior noncommissioned
             officer), 3 specifications
      Article 92 (Failure to obey a lawful order), 2 specifications
      Article 128 (Assault), 2 specifications
      Article 134 (Drunk and disorderly conduct), 3 specifications
      Article 134 (Communicating a threat), 3 specifications.
      Sentence:  BCD; FOP; CONF (20060407-20060814 (130 days))

Retention Warning Counseling:
      - 20050304: For driving on a suspended license, reckless driving, and
                 driving while under the influence, on 04 Dec 05 in NYC, NY.
      - 20041018: For driving out in town on 041010, you were pulled over by
                 a police officer and given a sobriety test, as a result of
                 the breathalyzer, you blew a .16, which is over the legal
                 limit and were given a citation for DWI.
      - 20040301: For violation of the UCMJ in being UA on 040121 you failed
                 to follow the instruction of the OOD and did not contacted
                 your chain of command to inform them of your situation.






                    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:           Substance Abuse:
Criminal Records:
      Family/Personal Status:           Community Service:
References:
              Additional Statements:
                             From Applicant:       From Representation:
      From Congress member:

                    Other Documentation:

                          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.

D.  The Manual for Courts-Martial authorizes the award of a punitive
discharge if adjudged as part of the sentence upon conviction by a special
or general court-martial for violation of the UCMJ, Article 86 (UA),
Article 91 (Disrespect towards a superior noncommissioned officer), Article
92 (Failure to obey a lawful order), Article 128 (Assault), Article 134
(Drunk and disorderly conduct), and Article 134 (Communicating a threat).



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

                             Applicant’s Issues

1. Believe that the discharge given to me was improper.
2. EO complaint to the IG was also used against me by my command.

                                  Decision


Date:  20090820        Location: Washington D.C.    Representation:

By a vote of  the Characterization shall  .
By a vote of  the Narrative Reason shall  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.  With respect to
a discharge adjudged by a court-martial case, the action of the NDRB is
restricted to upgrades based on clemency.  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.  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.  Clemency
is an act of leniency that reduces the severity of the punishment imposed.
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 was marred by three NAVPERS 1070/613
(Page 13) warnings, one NJP for violations of the Uniform Code of Military
Justice (UCMJ): Article 86 (UA) and Article 92 (failure to obey a lawful
order), and one Special Court Martial (SPCM) for violations of the Uniform
Code of Military Justice (UCMJ).  Specifically, the SPCM involved:  Article
91 (disrespect towards a superior noncommissioned officer), 3
specifications; Article 92 (failure to obey a lawful order), 2
specifications; Article 128 (assault), 2 specifications; Article 134 (drunk
and disorderly conduct), 3 specifications; and Article 134 (communicating a
threat), 3 specifications.  The command did refer the Applicant to a
special court-martial, and the Applicant was found guilty of the offenses
and awarded forfeiture of pay, confinement for 130 days and a Bad Conduct
Discharge.  The Board rejects the Applicant’s contention he had a single
period of misconduct.

:  (Decisional) ()  .  The Applicant contends his discharge should be
upgraded based on fact that his enlistment was brought up in his court-
martial, and his EO complaint to the IG was also used against him by the
command.  The government enjoys a presumption of regularity in the conduct
of its affairs.  The Applicant bears the burden of overcoming this
presumption through the presentation of substantial and credible evidence
to support his issue.  There is no evidence in the record, nor has the
Applicant produced any evidence, to support the contention that the command
had committed any form of discrimination against the Applicant.  The
Applicant’s statements alone do not overcome the government’s presumption
of regularity in this case.

Summary:  After a thorough review of the available evidence, to include the
Applicant’s summary of service,  record entries, discharge process and
evidence submitted by the Applicant, the Board found   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 until
fifteen years from the date of his/her discharge.  The Applicant is
directed to the Addendum, specifically the paragraphs titled Additional
Reviews, Automatic Upgrades, and Post-Service Conduct.



                  ADDENDUM:  Information for the Applicant

Complaint Procedures:  If you believe that 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:  Subsequent to a document review, former members are
eligible for a personal appearance hearing, provided the application is
received at the NDRB within 15 years from the 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.  If a former member has been discharged for more than 15 years,
has already been granted a personal appearance hearing or has otherwise
exhausted his 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 Veterans Administration determines eligibility for
post-service benefits, not the Naval Discharge Review Board.  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 Board for Correction of Naval Records (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 subsequently is processed for an administrative
involuntary separation or is referred to a court-martial for misconduct,
the disability evaluation is suspended.  The Physical Evaluation Board case
remains in suspense pending the outcome of the non-disability proceedings.
If the action includes either a punitive or administrative discharge for
misconduct, 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 Board for
Correction of Naval Records can grant this type of narrative reason change.

Automatic Upgrades - There is no law or regulation, which provides that an
unfavorable discharge may be upgraded based solely on the passage of time
or good conduct in civilian life subsequent to leaving Naval service.  The
NDRB is authorized to consider post-service factors in the
recharacterization of a discharge 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.  Examples of
documentation that may be provided to the Board include proof of
educational pursuits, verifiable employment records, documentation of
community service, credible evidence of a substance free lifestyle and
certification of non-involvement with civil authorities.

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