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

Application Received: 20130422

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
_ Narrative Reason change to: NONE REQUESTED

’ SUMMARY OF SERVICE

Prior Service:
Inactive: USMCR (DEP) NFIR Active: NONE

Period of Service Under Review:
Date of Current Enlistment: 2004083 1. Age at Enlistment: 24

Period of Enlistment: 4 Years 0 Months

Docket No. MD13-01104

Date of Discharge: 20080408 Highest Rank: PRIVATE FIRST CLASS
Length of Service: 03 Year(s) 07 Month(s) 09 Day(s)
Education Level: [2 AFOT: 48

_ MOS: 0621 ,

Proficiency/Conduct Marks (# of occasions): 2.8 (NFIR)/ 2.2 (NFIR) Fitness Reports: NOT APPLICABLE

Awards and Decorations (per DD 214): Rifle MM NDSM GWOTSM LoA

Periods of UA: 20050624 - 20060321, 270 days; 20060530 - 20060603, 5 days; 20060703 - 20070317, 257 days

CONF: 20070319 - 26070528, 71 days
NIP: 3
- 20050616: Article 86 (Absence without leave, fail to go to appointed place of duty)
Article 92 (Failure to obey order or regulation)
Awarded: FOP RIR RESTR EPD Suspended: FOP

~-20060406: Article 86 (Absence without leave, 20050624 - 20060321, 270 days)
Awarded: FOP RIR RESTR EPD Suspended: NONE

- 20060613: Article 86 (Absence without leave, 20060530 - 20060603, 5 days)
Awarded: FOP Suspended: FOP

SPCM: I

- 20070517: Article 86 (Absence saithiiut leave, 20060703 - 20070317, 257 days)
Sentence: BCD CONF 90 days FOP

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

COMF - Confinement CC - Civilian conviction CCU - Correctional Custody Unit CBW - Confinement on bread and water
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a Docket No. MD13-01104
—_—_—_ CO COE NO. MOD IS-01104

TYPES OF DOCUMENTS SUBMITTED/REVIEWED

 

Related te Military Service:

Department of VA letter: Other Documentation: [[]
Additional Statements:

From Applicant:

DD 214: Service/Medical Record: [KJ Other Records: Cc.
Related to Post-Service Period:
Employment: — Finances: O Education/Training: Zz
Health/Medical Records: ‘Rehabilitation/Treatment: [] Criminal Records: Cc]
Personal Documentation: Community Service: CI References: Cl]
|

QO OO00

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 [V, 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.

Key: NFIR - Not found in record RESTR - Restriction , NIP - 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
: .= . : Docket No. MD13-01104
en
DEPARTMENT OF THE NAVY
NAVAL DISCHARGE REVIEW BOARD (NDRB)

DISCHARGE REVIEW DECISIONAL DOCUMENT

 

APPLICANT?’S ISSUES

1. The Applicant seeks Department of Veterans Affairs (VA) benefits.
2. The Applicant contends his depression led to his misconduct.
3. The Applicant contends his post-service sobriety warrants clemency.

DECISION

Date: 20131114. DOCUMENTARY REVIEW Location: WASHINGTON D.C. __ Representation: Disabled Asmesteait Veterans

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 three

nonjudicial punishments (NJPs) for violations of the Uniform Code of Military Justice (UCM): Article 86 (Absence without
leave, 3 specifications: Specification 1: Fail to go to appointed place of duty, Specification 2: 20050624 - 2006032 1, 270 days,
and Specification 3: 20060530 - 20060603, 5 days) and Article 92 (Failure to obey order or tegulation) and one

special court-martial (SPCM) for violation of the UCMJ: Article 86 (Absence without leave, 20060703 - 200703 17, 257 days).
The Applicant was convicted at a Special Court-Martial and was discharged with a Bad Conduct Discharge.

Issue 1: (Nondecisional) The Applicant seeks VA 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.

issue 2: (Decisional) (Clemency) RELIEF NOT WARRANTED. The Applicant contends his depression led to his
misconduct. The Applicant further contends the death of his friend on 27 May 2006 led to his misconduct. The record shows
the Applicant had persistent misconduct, to include a period of being UA for 270 days that was prior te his friend’s death.
Further, the record clearly shows the Applicant had a trial by Special Court-Martial where he was afforded the opportunity to
bring forth any mitigating circumstances. Therefore, the NDRB determined the -Applicant’s discharge characterization
accurately reflects his service and his personal problems did not mitigate his disobedience of the orders and directives that
regulate good order and discipline in the Naval Service. Clemency denied.

Issue 3: (Decisional) (Clemency) RELIEF NOT WARRANTED. The Applicant contends his post-service sobriety warrants
clemency. To warrant clemency, the Applicant’s post-service efforts need to be more encompassing. The Applicant could have
produced evidence as stated in the Post-Service Conduct paragraph in the Addendum with the full understanding completion of
these iterns alone does not guarantee clemency. The NDRB determined the Applicant’s post-service efforts do not warrant

clemency. 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. |
. 4 . anne. ~ . ee
; = Docket No. MD13-01104
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ADDENDUM: Information for the Applicant

 

Complaint Procedures: If you believe the decision in your case is unclear, not resporisive to the issues yau 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) PLP, 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.Jaw.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 ta support any

- ¢laims 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. Ifa 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 farther review.

Service Benefits: The U.S. Department of Veterans Affairs (VA) determines eligibility for post-service benefits, not the NDRB. There is no requirement
o¢ law that grants recharacterization solely on the issue of obtaining veterans benefits and this issue does not serve to provide a foundation upon whith the
Board can grant relief. , -

Employment/Educaticnal Opportunities: The NDRB has go 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 opportumities. 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. Ifthe 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 ef Review Boards
Att: Naval Discharge Review Board
720-Kennon Street SE Rm 309

Washington Navy Yard DC 20374-5023