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

ex-PVT, USMC
Docket No. MD99-01225

Applicant’s Request

The application for discharge review, received 990910, requested that the characterization of service on the discharge be changed to general/under honorable conditions.  The applicant requested a documentary record discharge review.  The applicant listed VETERANS OF FOREIGN WARS as his representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 000525.  After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, NDRB discerned no impropriety or inequity in the characterization of the applicant’s service.  However, the Board determined that clemency is warranted in this case based upon a review of the member’s complete record, specifically including post-service conduct.  The vote was 4 to 1 that the character of the discharge shall change.  The discharge shall change to:  UNDER OTHER THAN HONORABLE CONDITIONS/As a result of a courts-martial (SPCM) – Other, authority: MARCORSEPMAN Par. 1105.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

1.  Veteran somelny request his discharge be upgraded to a minimum of general under honorable because at the time of his court-martial and for a period before he absented himself without leave, the veteran requested both emergency and regular leave about 3 or 4 times due to the failing health of his father and decline of his family's business.  He was denied this leave and the veteran was under so much pressure that it was important enough for the veteran to go UA in support of his father and family.

2.  Veteran has since graduated from college and has an exemplary record as a civilian. Veteran has no police record nor has he had any trouble with the law.  In fact he has volunteered  numerous hours to two police departments and wishes to become a police officer himself.  Please see attached letter from the city of Miami Beach, at which time he became a committee member for the Boy Scouts of America.

3.  Since veteran (while on UA) was in contact with his unit it clearly shows that this veteran let them know where he was at all times and did not try to run an hide but he may have known he was wrong but showed amipbicle remorse at all times.  This veteran has paid his debt to society and should be given the benefit of the dout (38 CFR) and has shown that he is an asset to society rather than a liability.

4.	Veteran by attached letters clearly shows that the preponderance of the stated evidence would in fact  excell if he was in the USMC now.  Veteran's request are based on pure fact and he should be granted a second chance so he might receive his VA benefits (hospitalization, appointment, medication, etc).  Veteran request this upgrade so he may also seek gainful employment which he may be refused if not granted. It will serve no justice to keep a credit to society such as this veteran if not granted his request.

5.   USMC accepted veteran prior to becoming U.S. Citizen and was pushed through enlistment/basic training at the age of 17.  His recruited was not present nor were his parents to sign consent.

Documentation

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

Copy of DD Form 214
Copy of Letter of Recommendation from LTC (Ret) U.S. Army Senior Army Instructor
Copies of Reference Letter (3)
Transcript from Advance Therapeutic Massage Training Program
Copy of Certificate of Naturalization  

PART II - SUMMARY OF SERVICE

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

	Active:   USMC		None
	Inactive:  USMCR(J)		870130 - 871101	COG

Period of Service Under Review:

Date of Enlistment:  871102		Date of Discharge:  911028

Length of Service (years, months, days):

	Active:    03  11  26 (incl UA time)
	Inactive:  None

Age at Entry:  17			Years Contracted:  4 

Education Level:  12			AFQT:  73

Highest Rank:  PFC

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  4.3 (3)			Conduct:  3.2 (4)

Military Decorations:  None

Unit/Campaign/Service Awards:  Rifle Sharpshooter Badge, NDSM 

Days of Unauthorized Absence:  964 (exclude confinement) 

Character, Narrative Reason, and Authority of Discharge (at time of issuance):

BAD CONDUCT DISCHARGE/As a result of a courts-martial (SPCM) - Other, authority:  MARCORSEPMAN Par. 1105.

Chronological Listing of Significant Service Events:

880501:	To UA.

880524:	From UA. 

880806:	Applicant declared a deserter on 880705 having been an unauthorized absentee since 880705, from 3dBn 8thMar 2dMarDiv FMF CamLej, NC.

910214:	Applicant apprehended by civil authorities on 910214 (0810).  Returned to military control 910215.  

910214:	Pretrial confinement 910214 to 910314 credited toward the period of confinement approved.

910314:	Special Court-Martial.
	Charge I:  violation of the UCMJ, Article 86: Without authority absent himself from his unit from 880705 to 910214 (940days/UA).
	Findings:  to Charge I and specification 1 thereunder, guilty.  
	Sentence:  Confinement for 2 months, forfeiture of $500.00 pay per month for 2 months, reduction to E-1, and a bad conduct discharge.
	CA 910722:  Sentence approved and, with the exception of the bad conduct discharge, will be executed.  That part of the sentence extending to confinement in excess of 28 days is suspended for a period of six months from the date of trial, at which time, unless sooner vacated, the suspended part of the sentence shall be remitted without further action.

910314:	Applicant waived clemency review.

910314:	Applicant waived appellate review by NMCCMR.

910821:	SSPCMO:  Article 71c, UCMJ, having been complied with, Bad Conduct discharge ordered executed.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 911028 with a bad conduct discharge which was the sentence adjudged by a properly constituted special court martial that was determined to be legal and proper, affirmed in the legal chain of review and executed (A and B).  The Board presumed regularity in the conduct of governmental affairs (C).  After a thorough review of the records, supporting documents, facts, circumstances unique to this case, and the applicant’s post service contributions to society, the Board grants clemency (D and E).

The Board grants partial relief based on the applicant’s issues 1 and 2. In issue 3, the Board found no evidence that the applicant was in contact with his unit during his period of 940 days UA, as he indicated. In issue 4, the Board does not grant relief solely so the applicant can utilize his V.A. benefits or for seeking better employment opportunities. In the applicant’s issue 5, the Board found that his parents had consented to his enlistment as indicated by their signatures on the DD Form 1966/6. Citizens of foreign countries are eligible to serve in the armed services, contrary to the applicant’s allegation. Partial relief granted. 

The applicant is reminded that he is entitled to a personal appearance hearing within 15 years from the date of his discharge. Additional post-service documentation will be necessary for the discharge to be upgraded further.   
Pertinent Regulation/Law (at time of discharge)

A.  Paragraph 1105, DISCHARGE ADJUDGED BY SENTENCE OF COURTS-MARTIAL, of the Marine Corps Separation and Retirement Manual, (MCO P1900.16D), effective 27 Jun 89 until 17 Aug 95.

B.  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 [ e.g., Article 86, unauthorized absence for more than 30 days].

C.  Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 2, AUTHORITY/POLICY FOR DEPARTMENTAL DISCHARGE REVIEW.  

D.  Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 9, paragraph 9.2, PROPRIETY OF THE DISCHARGE.

E.  Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 9, paragraph 9.3, EQUITY OF THE DISCHARGE.

PART IV - INFORMATION FOR THE APPLICANT

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 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
		Washington Navy Yard
		720 Kennon Street SE Rm 309
		Washington, D.C.  20374-5023