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

, ex-Pvt, USMC
Docket No. MD98-00025

Applicant’s Request

The application for discharge review, received 971026, requested that the characterization of service on the discharge be changed to honorable.  The applicant requested a documentary discharge review and listed The American Legion as his representative on the DD-293.

Summary of Review

A documentary discharge review was conducted in Washington, D.C. on 981109.  The NDRB determined that the characterization of service equitably reflects the quality of service rendered.  The discharge shall remain:  BAD CONDUCT DISCHARGE/AS A RESULT OF A COURT-MARTIAL (SPCM) - OTHER; authority:  MARCORSEPMAN, 1105.

PART I - APPLICANT’S ISSUES (verbatim)

Pursuant to 10 USC  874 (b) (1994) (UCMJ article 74) and in accordance with SECNAVINST 5420.174C, enclosure (1), paragraphs 2.24 and 9.3, this former member requests the Board’s clemency relief with up-grade of his characterization of service to Under Honorable Conditions (General) on the basis of his post-service conduct.  

PART II - SUMMARY OF SERVICE

Prior Service (component, dates of service, type of discharge):

	Active:		None
	Inactive:	USMCR (J)		831018-840626	COG

Period of Service Under Review:

Date of Enlistment:  840627			Date of Discharge:  880202

Length of Service (years, months, days):

	Active:    03  07  06
	Inactive:  None

Age at Entry:  18				Years Contracted:  4

Education Level:  12				AFQT:  34

MOS:  7041					Highest Rank:  LCpl

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  4.3 (7)				Conduct:  4.2 (7)

Military Decorations:  None

Unit/Campaign/Service Awards:  None

Nonjudicial Punishment(s):  1   		Court(s)-Martial:  1 SPCM

Days of Unauthorized Absence:  25  

Character, Narrative Reason, and Authority of Discharge:

BAD CONDUCT DISCHARGE/AS A RESULT OF A COURT-MARTIAL (SPCM) - OTHER; authority:  MARCORSEPMAN,  1105.

PART III - CHRONOLOGICAL LISTING OF SIGNIFICANT SERVICE EVENTS1, 2

840628:	Joined 3rd RTBN, RTR MCRD, Parris Island, SC.

840929:	Joined MATSG NTTC NAS Meridian, MS for training.

850104:	Joined HQHQRON MCAS Cherry Point, NC.

860516:	Joined VMA-331, MAG-32, 2nd MAW, MCAS Cherry Point, NC.

860821:	Counseled concerning failure to be at appointed place and time on 860811 at 0730 at JINTACCS School (MWHS-2).  Corrective action includes paying closer attention to assigned times.  Assistance is available through your chain of command; and you are advised that failure to take corrective action may result in administrative separation or judicial proceedings.  

860903:	Counseled concerning failure to meet a scheduled dental appointment on 860825.  Corrective action includes paying closer attention to assigned times and canceling appointments that you are unable to attend.  Assistance is available through the Squadron Dental Officer; and you are advised that failure to take corrective action may result in administrative separation or judicial proceedings.

860910:	NJP for violation of UCMJ, Articles 112 (1 specification) and 86 (2 specifications).  
Article 112: 
Specification 1:  While on duty section, did consume alcohol, attaining a blood alcohol content of .13% on 860809.
	Article 86:
Specification 1:  Failed to go at the time prescribed to duty section on 860829.
Specification 2:  Failed to go at the time prescribed to duty section on 860829, 860830, and 860831.
	Awarded reduction to E-2 (PFC), and forfeiture of $358.00 per month for 1 month, and extra duties for 45 days.  Not appealed.  Effective date of reduction 860909.

861216:	Special Court-Martial
	Charge I:  Violation of the UCMJ, Article 86 (2 Specifications):
	Specification 1:  Failure to go to appointed place of duty on 860917.
	Specification 2:  UA from 861010 to 861104 (25 days/S).
	Charge II:  Violation of the UCMJ, Article 91 (4 Specifications):
Specification 1:  Willful disobedience of a lawful order from a superior staff noncommissioned officer on 860916.
Specification 2:  Disrespect to a superior noncommissioned officer on 861009.
Specification 3:  Disobedience of a lawful order from a superior noncommissioned officer on 861009.
Specification 4:  Willful disobedience of a lawful order from a superior staff noncommissioned officer on 861105.
	Findings:  To Charge I and specifications 1 and 2 thereunder, guilty; to Charge II and specifications 1, 3, and 4 thereunder, guilty – specification 2 dismissed.
	Sentence:  Forfeiture of $400.00 per month for 2 months, reduction to E-1, 45 days confinement, and a bad conduct discharge (BCD).
	CA 870210:  Sentence approved and ordered executed except for the BCD.

870424:	NC&PB denied clemency and restoration.

870922:	NMCCMR:  The findings of guilty and sentence, as approved on review, are affirmed.

880202:	SSPCMO:  Article 71c, UCMJ, having been complied with, Bad Conduct Discharge ordered executed.

880202: 	Discharged BAD CONDUCT DISCHARGE/AS A RESULT OF A COURT-MARTIAL (SPCM) - OTHER; authority:  MARCORSEPMAN, 1105.

RECORDER’S NOTES:

1The source for all entries is the service record (includes medical/dental record) unless otherwise noted.

2DD Form 214 contains administrative errors.  See Part VI.

 PART IV - EXTRACT OF PERTINENT REGULATION/LAW

A.  Paragraph 1105, DISCHARGE ADJUDGED BY SENTENCE OF COURT-MARTIAL, of the Marine Corps Separation and Retirement Manual, (MCO P1900.16E, effective 950818 until present), states:

1.  The word “discharge” as used in this paragraph refers to punitive (dishonorable and bad conduct) discharges adjudged by sentence of court-martial.

2.  It has been, and continues to be, the Navy Department’s (DON) policy that convening and reviewing authorities should approve discharges only in those cases where a Marine’s record and conduct show conclusively that he or she is not fit for retention, and where retention is clearly not in the Government’s interest.

3.  The appropriateness of a punitive discharge as the sentence, or as part of the sentence, of a court-martial is discussed in the MCM 1984, RMC 1003 (b) (10).

4.  Personnel retained beyond EAS serving a sentence or awaiting appellate review of a court-martial may be discharged under section 0157 of the JAG Manual and/or SECNAV instructions in the 5815 series.  Confinees who have completed appellate review process and have had the opportunity to submit one clemency request to the Naval Clemency and Parole Board may be discharged while in confinement.  Discharged Marines will be provided their DD Form 214 at the time of their release from confinement, expiration of their sentence, or upon their parole or transfer to a Federal institution. 

5.  Except when the discharge has been suspended and not vacated, the transfer of Marines sentenced to discharge who are serving outside the CONUS will be governed by the following instructions:

a.  When an enlisted Marine sentenced to discharge is serving OCONUS, whether it is ashore or onboard ship, transfer will be made to the Marine Corps activity within the CONUS nearest the port of debarkation, for retention or redesignation of a place of temporary custody or confinement per current directives.  Marines who are permanent residents of Alaska or Hawaii and serving in their respective state should not be returned to the CONUS.

b.  Unless appellate leave has been granted and the action required by MCO P1050.3 completed, a Marine sentenced to a punitive discharge will not be transferred to the CONUS until review has been completed by the officer exercising general court-martial jurisdiction, the promulgating order issued, and service record entries made reflecting the action by the officer exercising general court-martial jurisdiction. 

c.  Transfer Marines to the CONUS after appropriate entries have been made in the service record to show the action taken by the convening authority when, pursuant to the Manual of the Judge Advocate General of the Navy, the record of trial is submitted directly to the Office of the Judge Advocate General of the Navy without review by an officer exercising general court-martial jurisdiction. 

d.  When transfer to the CONUS is directed, forward a report to the Judge Advocate General of the Navy per MCM, 1984, with a copy to the CMC(JA).  Indicate the type of court-martial, sentence as approved at the time of transfer, the name of the activity to which the Marine is transferred, and the estimated report date to the new activity.  Upon the Marine’s arrival at the new activity, the commander will immediately advise by naval message the Judge Advocate General of the Navy with a copy to CMC(JA).  When a different activity or disciplinary command is redesignated as the place of temporary custody or confinement, this fact will be set forth in the report, and the date of transfer will be stated.

e.  No punitive discharge is to be effected OCONUS, except per instructions of the Secretary of the Navy or the CMC.

6.  When an enlisted Marine serving at a station within the CONUS is sentenced to discharge and the discharge has not been suspended for a stated number of months to permit the Marine to continue in the service after satisfactorily serving during a probationary period, the Marine will be retained at the place of trial or transferred to another activity or a disciplinary command, per regulations governing designation of places of confinement.  When a Marine is transferred to another station or to a disciplinary command, forward a report of the transfer to the Judge Advocate General of the Navy, with copy to the CMC (JA).  See MCM, 1984.

7.  When an enlisted Marine serving within the CONUS attached to a vessel or organization destined for a transfer to foreign duty has been sentenced to discharge, and the discharge has not been suspended for a stated number of months to permit the Marine to continue serving satisfactorily during a probationary period, the Marine shall be transferred to a disciplinary command if the established criteria for transfer to such a command is met; otherwise, transfer the Marine to the Marine Corps activity nearest to the port of departure prior to sailing.  Report the transfer per paragraph 1105.6.

8.  Where the execution of a portion of a sentence which adjudged a discharge is suspended subject to a probationary period, the suspension may be vacated pursuant to the procedures in MCM, 1984.  Commanders must give careful consideration to reports of offenses committed by Marines serving in such status and to undertake proceedings for the vacation of suspension of the sentence only where it is established by the record that such action is appropriate and in the best interest of the Marine Corps.  

B.  SECNAVINST 5420.174C, enclosure (1), Manual for Discharge Review 1984, Chapter 2, AUTHORITY/POLICY FOR DEPARTMENTAL DISCHARGE REVIEW, paragraph 2.24, Court-Martial Specifications, Presumption Concerning, states:  Relevant and material facts stated in a court-martial specification, shall be presumed by the NDRB Panel as established facts.  With respect to a discharge or dismissal adjudged by a court-martial case tried under the Uniform Code of Military Justice [set forth in Chapter 47 of Title 10 United States Code as amended] the action [of the NDRB] may extend only to a change in the discharge or dismissal for purposes of clemency.  This policy only applies to cases filed with the discharge review board after 6 December 1983.  [Source:  10 U.S.C. 1553, as amended by P.L. 98-209 of 831206.]

C.  Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 9, STANDARDS FOR DISCHARGE REVIEW, states, in part:

“9.2 Propriety of the Discharge

a.  A discharge shall be deemed to be proper unless, in the course of discharge review, it is determined that: 

(1) There exists an error of fact, law, procedure, or discretion associated with the discharge at the time of issuance; and that the rights of the applicant were prejudiced thereby (such error shall constitute prejudicial error if there is substantial doubt that the discharge would have remained the same if the error had not been made); or

(2) A change in policy by the military service of which the applicant was a member, made expressly retroactive to the type of discharge under consideration, requires a change in the discharge.

b.  When a record associated with the discharge at the time of issuance involves a matter in which the primary responsibility for corrective action rests with another organization (for example, another Board, agency, or court), the NDRB will recognize an error only to the extent that the error has been corrected by the organization with primary responsibility for correcting the record.

c.  The primary function of the NDRB is to exercise its discretion on issues of equity by reviewing the individual merits of each application on a case-by-case basis.  Prior decisions in which the NDRB exercised its discretion to change a discharge based on issues of equity (including the factors cited in such decisions or the weight given to factors in such decisions) do not bind the NDRB in its review of subsequent cases because no two cases present the same issues of equity.

d.  The following applies to applicants who received less than fully honorable administrative discharges because of their civilian misconduct while in an inactive duty status in a reserve component and who were discharged or had their discharge reviewed on or after April 20, 1971:  the NDRB shall either re-characterize the discharge to Honorable without any additional proceedings or additional proceedings shall be conducted in accordance with the Court’s Order of December 3, 1981, in Wood v. Secretary of Defense to determine whether proper grounds exist for the issuance of a less than honorable discharge, taking into account that:

(1) An other than honorable (formerly undesirable) discharge for an inactive duty reservist can only be based upon civilian misconduct found to have affected directly the performance of military duties;

(2) A general discharge for an inactive duty reservist can only be based upon civilian misconduct found to have had an adverse impact on the overall effectiveness of the military, including military morale and efficiency.

9.3 Equity of the Discharge

A discharge shall be deemed to be equitable unless:

a.  In the course of a discharge review, it is determined that the policies and procedures under which the applicant was discharged differ in material respects from policies and procedures currently applicable on a service-wide basis to discharges of the type under consideration, provided that:

(1) Current policies or procedures represent a substantial enhancement of the rights afforded a respondent in such proceedings; and

(2) There is substantial doubt that the applicant would have received the same discharge, if relevant current policies and procedures had been available to the applicant at the time of the discharge proceedings under consideration.

b.  At the time of issuance, the discharge was inconsistent with standards of discipline in the military service of which the applicant was a member.

c.  In the course of a discharge review, it is determined that relief is warranted based upon consideration of the applicant's service record and other evidence presented to the NDRB viewed in conjunction with the factors listed in this paragraph and the regulations under which the applicant was discharged, even though the discharge was determined to have been otherwise equitable and proper at the time of issuance.  Areas of consideration include, but are not limited to:

(1) Quality of service, as evidenced by factors such as:

(a) service history, including date of enlistment, period of enlistment, highest rank achieved, conduct and proficiency ratings (numerical and narrative);

(b) awards and decorations;
(c) letters of commendation or reprimand;

(d) combat service;

(e) wounds received in action;

(f) records of promotions and demotions;

(g) level of responsibility at which the applicant served;

(h) other acts of merit that may not have resulted in formal recognitions through an award or commendation;

(i) length of service during the service period which is the subject of the discharge review;

(j) prior military service and type of discharge received or outstanding post-service conduct to the extent that such matters provide a basis for a more thorough understanding of the performance of the applicant during the period of service which is the subject of the discharge review;

(k) convictions by court-martial;

(l) records of nonjudicial punishment;

(m) convictions by civil authorities while a member of the service, reflected in the discharge proceedings or otherwise noted in the service records;

(n) records of periods of unauthorized absence;

(o) records relating to a discharge in lieu of court-martial.

(2) Capability to serve, as evidenced by factors such as:

(a) Total capabilities.  This includes an evaluation of matters such as age, educational level, and aptitude scores.  Consideration may also be given as to whether the individual met normal military standards of acceptability for military service and similar indicators of an individual's ability to serve satisfactorily, as well as ability to adjust to military service.

(b) Family and personal problems.  This includes matters in extenuation or mitigation of the reason for discharge that may have affected the applicant's ability to serve satisfactorily.

(c) Arbitrary or capricious actions.  This includes actions by individuals in authority which constitute a clear abuse of such authority and that, although not amounting to prejudicial error, may have contributed to the decision to discharge the individual or unduly influence the characterization of service.

(d) Discrimination.  This includes unauthorized acts as documented by records or other evidence."

PART V - RATIONALE FOR DECISION

Discussion

	After a thorough review of the records, supporting documentation1, facts, and circumstances unique to this case, the Board determined that the basis for the discharge is proper and the characterization of the applicant’s service is equitable.  The discharge shall remain:  BAD CONDUCT DISCHARGE/COURT-MARTIAL; authority:  MARCORSEPMAN, 1105.
 
	The applicant was discharged with a bad conduct discharge on 880202.  The bad conduct discharge was the sentence adjudged by a properly constituted special court martial, which was determined to be legal and proper, affirmed in the legal chain of review, and then executed in accordance with applicable provision of the Marine Corps Separation and Retirement Manual, (A, Part IV.) 

The applicant submitted the following as his only issue:  “Pursuant to 10 USC  874 (b) (1994) (UCMJ article 74) and in accordance with SECNAVINST 5420.174C, enclosure (1), paragraphs 2.24 and 9.3, this former member requests the Board’s clemency relief with up-grade of his characterization of service to Under Honorable Conditions (General) on the basis of his post-service conduct.”  The NDRB considers   requests for an upgrade based on post-service accomplishment in accordance with SECNAVINST 5420.174C, enclosure (1), Chapter 9.  With respect to a discharge adjudged by a court-martial case, the action of the NDRB is restricted to upgrades based on clemency.  The NDRB is authorized to consider post-service factors in the 
re-characterization of a discharge.  However, 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 the civilian life subsequent to leaving the service.  Outstanding post-service conduct, to the extent that 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 taken into consideration.  

The applicant provided 2 letters of character/personal reference as the only documentation of his post-service.  The NDRB noted the applicant’s academic pursuits and the positive impact he has made in the lives of a single-mom and her son.  However, the NDRB will not grant relief based on the limited documentation of post-service accomplishments provided.  The applicant's efforts need to be more encompassing than those provided; at this time the applicant has not provided sufficient documentation to warrant relief. 

RECORDER’S NOTE:

1In addition to the service record, the following additional documentation, submitted by the applicant was considered:

Copy of the applicant’s DD-214;
Letters of character/personal reference from:  Prof. C_J_, Audrey Cohen                                                College, School of Business; and Ms. A_ S_ (Significant Other).

PART VI - INFORMATION FOR THE APPLICANT

Decision: 

 	The Board discerned no impropriety or inequity in discharge.  The Board’s vote was unanimous that the basis and character of the discharge shall not change.  The discharge shall remain: BAD CONDUCT DISCHARGE/COURT-MARTIAL; authority:  MARCORSEPMAN, 1105.

The NDRB noted administrative errors on the original DD Form 214.  Block 12c, Net Active Service This Period, is inaccurate in that: (1) short one day due to mathematical error in computation; and (2) computation failed to take into account 25 loss days (UA) per block 29 of DD Form 214 and NAVMCs 118(3)/(4).  Computation of “net service this period” in Block 12c should read:  03 yrs, 06 mos, and 11 days. 

While it is true that you cannot go back in time and undo prior mistakes, you do have the opportunity to contribute in a positive way to society, and in so doing, warrant clemency.   Contributions that might be favorably looked upon by this board, or any other such board, include:  aggressive and noteable educational pursuits, consistent and progressive employment track record, and substantive volunteer work with organizations and/or within the community.

You are encouraged to continue with your pursuits and reminded that you are eligible for a personal appearance hearing provided the application is received within 15 years from the date of discharge.  The 15-year window during which applicants may appeal their discharges is to allow time to establish oneself firmly in the community, wherein accomplishment of substantial, documented lifestyle changes and community contributions are realistic and achievable.    

	If you believe that the decision in your case is unclear, not responsive to the issues which you raised, or does not otherwise comport with the decisional documents requirements of DoD Directive 1332.28, you may submit a complaint in accordance with enclosure (5) of that Directive.  You should read enclosure (5) of the Directive 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 obtain a copy of DoD Directive 1332.28 by writing to:

		DA Military Review Boards Agency
		Management Information and Support Directorate
		Armed Forces Reading Room
		Washington, D.C.  20310-1809 
	The names, and votes of the members of the Board are recorded on the original of this document and may be obtained from the service records by writing to:

		Naval Council of Personnel Boards
		Attn:  Naval Discharge Review Board
		Building 36 Washington Navy Yard
		901 M Street, SE
		Washington, D.C.  20374-5023