ex-, USMC

Current Discharge and Applicant’s Request

Applicant’s Request:     Characterization change to:
         Narrative Reason change to:

Summary of Service

Prior Service:
Inactive:        USMCR (DEP)      20010110 - 20010116     Active: 

Period of Service Under Review:
Date of Current Enlistment: 20010117    Age at Enlistment:
Period of Enlistment: Years Months
Date of Discharge: 20030731     Highest Rank:
Length of Service: Year(s) Month(s) 15 Day(s)
Education Level:        AFQT: 42
MOS: 9900
Proficiency/Conduct Marks (# of occasions): () / ()   Fitness Reports:

Awards and Decorations (per DD 214):     Rifle

NJP:

SCM:

SPCM:

- 20011023:      Article 86 (Absence without leave; 20010616 – 20010628, 13 days)
         Article 90 (Assaulting or willfully disobeying superior commissioned officer)
         Article 91 (Insubordinate conduct toward warrant officer, noncommissioned officer, or petty officer)
         Article 2 specifications
         Sentence: 120 days

CC:

Retention Warning Counseling:

- 20010515:      For your diagnosed physical condition not a disability, (bunions) and any resultant or aggravated condition which interferes with the effective performance of your duties.









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 502, Propriety and Para 503, Equity .

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

Applicant’s Issues

1.       The Applicant contends that he has reviewed his contract and that he feels he is eligible for an upgrade.
2.       The Applicant contends that his being awarded two medals, to include a Good Conduct Medal, warrants consideration for an upgrade.
3.       The Applicant contends that he was being bullied, hazed, and made fun of due to his pride in service and romantic relationship with a near-peer resulting in his becoming angry and fighting his aggressors.
4.       The Applicant contends that he would have been a career Marine had it not been for his injury. His injury caused him to be processed for a medical separation resulting in his assignment to the scandalous environment of the separations platoon in which other Marines committed egregious criminal behavior before being separated.

Decision


Date: 20150416           Location: Washington D.C.        Representation:

By a vote of the Characterization shall .
By a vote of the Narrative Reason shall .

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 record of service included 6105 counseling warning and for of the Uniform Code of Military Justice (UCMJ): Article 86 (Absence without leave, one specification), Article 90 (Assaulting or willfully disobeying superior commissioned officer; one specification), Article 91 (Insubordinate conduct toward warrant officer, noncommissioned officer, or petty officer; one specification), and Article 128 (Assault, two specifications). Based on the Applicant's conviction and sentence at a special court-martial, he was confined and separated with a Bad Conduct characterization of service. 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. On 23 October 2001 the Applicant initiated a request for clemency from the Naval Clemency and Parole Board via the Commandant of the Marine Corps. On 31 January 2003 the Naval Clemency and Parole Board completed their review of the Applicant’s case and found no clemency was warranted. The Navy-Marine Corps Court of Criminal Appeals reviewed the Applicant’s case and affirmed the decision on 8 July 2003. The Applicant’s discharge was executed on 31 July 2003 upon completion of appellate review as directed by the Navy and Marine Corps Appellate Leave Activity and annotated on his DD Form 214.

: (Decisional) () . The Applicant contends that he has reviewed his contract and that he feels he is eligible for an upgrade. Characterization of service at discharge is the recognition of a service member’s performance and conduct during a period of enlistment and is not necessarily dependent upon the narrative reason for separation. There is no law or regulation that authorizes a discharge to be upgraded after the passage of time. The NDRB does not upgrade a discharge after any set period of time after discharge and there is no contractual basis for a discharge upgrade between the government and those who are administrative or punitively discharged after any set period of time. Clemency denied.

: (Decisional) () . The Applicant contends that his being awarded two medals, to include a Good Conduct Medal, warrants consideration for an upgrade. The NDRB notes that the Applicant was not awarded a Good Conduct Medal for his service. The annotation on his DD Form 214 does not confer the award but rather documents that three years from the date of his last misconduct event he would have been able to receive the award, barring further active duty misconduct.

The Applicant was punitively discharged and not separated upon expiration of enlistment or fulfillment of service obligation. The characterization of service is determined by the quality of the member’s total performance of duty and conduct during the current enlistment, including the reason for separation. Other considerations shall be given to the member’s length of service, grade, aptitude, and physical and mental condition. Based on the Applicant’s record of service, the NDRB determined the Applicant engaged in conduct involving one or more acts or omissions that constituted a significant departure from the conduct expected of members of the Marine Corps, and the awarded characterization of service was warranted. Clemency denied.

: (Decisional) () . The Applicant contends that he was being bullied, hazed, and made fun of due to his pride in service and romantic relationship with a near-peer resulting in his becoming angry and fighting his aggressors. Statements alone, without sufficient documentary evidence, are not enough for the NDRB to form a basis of relief. 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. As such, this issue does not serve to provide a foundation upon which the NDRB can grant clemency. Clemency denied.

4: (Decisional) () . The Applicant contends that he would have been a career Marine had it not been for his injury. His injury caused him to be processed for a medical separation resulting in his assignment to the scandalous environment of the separations platoon in which other Marines committed egregious criminal behavior before being separated. Correspondence dated 8 June 2001 from the Naval Hospital, Camp Lejeune, North Carolina recommended the Applicant be separated due to “a history of Bilateral Foot Pain since before boot camp.” The aforementioned letter further stated the Applicant “waived his rights to a Physical Evaluation Board after counseling and is recommended for an administrative separation for Bilateral Foot Pain secondary to Pes Planus and Hallux Valgus.”

The NDRB notes that Department of Defense regulations provide that disciplinary separations supersede disability separations. Whenever a member is being processed for a medical reason and is subsequently referred to a court-martial for misconduct, the medical separation is suspended pending the outcome of the non-disability proceedings. If the action includes either a punitive discharge for misconduct, the medical 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; however, the record clearly reflects the Applicant’s willful misconduct and demonstrated he was unsuitable 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 determined the Applicant’s conduct, which forms the primary basis for determining the character of his service, reflected a significant departure from the conduct expected of a servicemember and that clemency was not warranted. Clemency denied.

Summary: After a thorough review of the available evidence, to include the Applicant’s summary of service, record entries, and discharge process, the Board found Therefore, the awarded characterization of service shall remain 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 for additional information.

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 Disable d 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: Effective 6 February 2015, the NDRB is authorized to change a NDRB Applicant’s Reenlistment Code if related to an accompanying change in discharge characterization or narrative, but this authority is strictly limited to those cases where an applicant’s narrative reason or characterization of discharge is changed and that change warrants revision of the previously issued reenlistment code. 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