Docket No. MD13-01101

 

ex-Pvt, USMC
CURRENT DISCHARGE AND APPLICANT’S REQUEST

Application Received: 20130416

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: GENERAL (UNDER HONORABLE CONDITIONS)
Narrative Reason change to: NONE REQUESTED

SUMMARY OF SERVICE
Prior Service:
Inactive: USMCR (DEP) 20000421 - 20000507 COG Active: NONE
Pre-Service Drug Waiver: YES
Period of Service Under Review:
Date of Current Enlistment: 20000508 Age at Enlistment: 21
Period of Enlistment: 4 Years 0 Months ,
Date of Discharge: 20050318 Highest Rank: LANCE CORPORAL
Length of Service: 04 Year(s) 10 Month(s) 11 Day(s) ,
Education Level: 12 AFOQT: 54
MOS: 0621
Proficiency/Conduct Marks (# of occasions): NFIR. Fitness Reports: NOT APPLICABLE

Awards and Decorations (per DD 214): Rifle MM Pistol MM NDSM GWOTEM SSDR NUC CoC
Periods of UA: 20030909 - 20031066, 28 days CONF: 20040304 - 20040504, 61 days
NJP: 2

- 20011202: Article 112a (Wrongful use, possession, etc., of controlled substances, marijuana)
Article 121 (Larceny and wrongful appropriation, wrongfully appropriate 5 PRC L19¢F) radios, the
property of the United States Government)
Awarded: FOP RIR RESTR EPD Suspended: NONE

~ 20031219: Article 86 (Absence without leave)
Specification 1: 20030909 - 20031006, 28 days
Specification 2: 20031203 - 20031205, 2 days
Article 112a (Wrongful use, possession, etc., of controlled substances, cocaine)
Awarded: FOP RIR RESTR Suspended: NONE

SPCM: |

- 20040427: Article 112a (Wrongful use, possession, etc., of controlled substances)
Specification 1: Did, on or about 20040226, wrongfully use cocaine .
Specification 2: Did, on or about 20040226, wrongfully use marijuana '
Article 128 (Assault) _
Sentence: BCD CONF 100 DAYS FOP RIR E-i

CC: NONE Retention Waring Counseling: NFIR
Key: NFIR - Not found ia record RESTR - Restriction NJP - Nonjudicial punishment SCM - Summary court-martial
SPCM - Special court-martial FOP - Forfeiture of pay RIR - Reduction ia rank EPD - Extra duties

CONF - Confinement CC - Civilian conviction CCU - Correctional Custody Unit CBW - Confinement on bread and water
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Docket No. MD13-01101
TYPES OF DOCUMENTS SUBMITTED/REVIEWED

Related te Military Service:

DD214: x Service/Medical Record: [X] Other Records: Cj
Related to Post-Service Period:

Employment: oO Finances: i” Education/Training: CJ

Health/Medical Records: [[] Rehabilitation/Treatment: [_] Criminal Records:- CT

Personal Documentation: [| Community Service: O References: CI -

Department of VA fetter: [] Other Documentation: ~~ ([]

Additional Statements:
. From Applicant: LI From/To Representation: [[] From/To Congress member: CJ

PERTINENT REGULATION/LAW

A. Paragraph 1105, DISCHARGE ADJUDGED BY SENTENCE OF COURT-MARTIAL, of the Marine Corps Separation and
Retirement Manual, (MCO P1900.165), 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.

Cc. Secretary of the Navy instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and
Standards, Part IE, Para 211, Regularity of Government Affairs, Part V, Para 502, Propriety and Para 503, Equity.

Key: NFIR - Not found in record RESTR - Restriction NIP - Nonjudicial punishment SCM - Summary court-martial
SPCM - Special court-martial FOP - Forfeiture of pay RR - Reduction in rank EPD - Extra duties
CONF - Confinement CC - Civilian conviction CCU - Correctional Custody Unit CBW - Confinement on bread and water
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a Docket No. MD13-01101 |
eS docket No. MDD13-01101
DEPARTMENT OF THE NAVY

NAVAL DISCHARGE REVIEW BOARD (NDRB)
DISCHARGE REVIEW DECISIONAL DOCUMENT

 

APPLICANT’S ISSUES

1. The Applicant contends his misconduct was an isolated incident.
2. The Applicant contends he acted out after wrongly being accused of theft.

DECISION
Date: 20131114 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 shail 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 two

nonjudicial punishments (NJPs) for violations of the Uniform Code of Military Justice (UCM)): Article 86 (Absence without
leave, 2 specifications: 28 days and 2 days), Article {12a (Wrongful usc, possession, etc., of controlled substances, 2
specifications: Wrongfully use marijuana and Wrongfully use cocaine), and Article 121 (Larceny and wrongful appropriation,
wrongfully appropriate 5 PRC 119(F) radios, the property of the United States Govemment), and one Special Court-Martial for
violations of the UCMI: Article 112a (Wrongful use, possession, etc., of controlled substances, 2 specifications: Did, on or
about 20040226, wrongfully use cocaine and Did, on or about 20040226, wrongfully use marijuana) and Article 128 (Assault).
The Applicant also had a pre-service drug waiver for using marijuana five times prior to entering the Marine Corps, and
acknowledged his complete understanding of the Marine Corps Policy Concerning Hicgal Use of Drugs on 17 April 2004. The
Applicant was convicted at a Special Court-Martial and was separated from the Marine Corps with a Bad Conduct Discharge.

Issue 1: (Decisional) (Clemency) RELIEF NOT WARRANTED. The Applicant contends his misconduct was an isolated
incident. The Applicant’s record documents a persistent pattern of misconduct to include four specifications of the wrongful .
use of controlled substances in addition to his other violations of the UCMJ. The NDRB determined the Applicant’s
misconduct was not isolated and further determined that clemency was not warranted. Clemency denied,

Issue 2; (Decisional) (Clemency) RELIEF NOT WARRANTED. The Applicant contends he acted out after wrongly being
accused of theft. While the Applicant may feel that being accused of wrongdoing justifies his misconduct, it does not mitigate
his disobedience of the orders and directives that regulate good order and discipline in the Naval Service. The record clearly
shows the Applicant pled guilty at a Special Court-Martial to violating UCMJ Article 112a (Wrongful use, possesston, etc., of
controlled substances, 2 specifications) and Article 128 (Assault), The NDRB determined the Applicant’s discharge
characterization accurately reflects his service. 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.
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MD13-01101

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ADDENDUM: Information for the Applicant

 

 

 

Complaint Procedures: If you believe the decision in your case is unclear, not Tesponsive 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 docs not pecmit 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. [fa 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 sale 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 2 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 ever 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 past-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; documnentation 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 ona case-by-case basis to determine if post-service accomplishments help demonstrate in-service misconduct was an
. aberration and not indicative of the merber’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
Atm: Naval Discharge Review Board

720 Kennon Street SE Rm 309

Washington Navy Yard DC 20374-5023