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

 ex-Pvt, USMC
Docket No. MD00-00093

Applicant’s Request

The application for discharge review, received 991019, 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 did not designate a representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 000622.  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.  The Board’s vote was unanimous that the character of the discharge shall not change.  The discharge shall remain: BAD CONDUCT DISCHARGE/COURT-MARTIAL, authority: MARCORSEPMAN Par. 1105.

The NDRB did note an administrative error on the original DD Form 214.  Block 18, Remarks, should contain the following statement:  "CONTINUOUS HONORABLE ACTIVE SERVICE FROM 07JUN88 - 06FEB92".  The original DD Form 214 should be corrected or reissued as appropriate. 

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

1.  Upon review of Original Record of Trial Review, I, C_ D. Z_ (Applicant), do find the Judge's decision to be harsh and rash.  The fact that an ex-Marine's daughter was involved also stimulated the final decision.  During the trial there was no evidence presented to find the accused guilty of such accusations.  I feel strongly that I have been taken advantage of and would like for justice to be served on my behalf.

Documentation

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

Copy of DD Form 214
Applicant's Record of Trial/Review

PART II - SUMMARY OF SERVICE

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

	Active:   USMC		880607 - 920206	HON
	Inactive: USMCR(J)		870618 - 880606	COG

Period of Service Under Review:

Date of Enlistment:  920207		Date of Discharge:  980814

Length of Service (years, months, days):

	Active:    06  06  08 (Doesn't exclude lost time/confinement time)
	Inactive:  None

Age at Entry:  22			Years Contracted:  4 (15 months extension)

Education Level:  12			AFQT:  54

Highest Rank:  Sgt

Final Enlisted Performance Evaluation Averages:  All enlisted performance reports for this enlistment were available to the Board for review.

Military Decorations:  NAM

Unit/Campaign/Service Awards:  NUC, MUC, GCM(w/1 Star), NDSM, SWASM, SSDR (w/1 Star), KLM (2), CC, MM, LOA (3), COA (3), Rifle Marksmanship Badge 

Days of Unauthorized Absence:  109 

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

BAD CONDUCT DISCHARGE/COURT-MARTIAL, authority:  MARCORSEPMAN Par. 1105.

Chronological Listing of Significant Service Events:

920207:	Reenlisted for term of four years at 1ST LAIBN 1ST MARDIV, FMF, Camp Pendleton, CA.

960207:	Extended enlistment for 15 months.

960220:	Counseled for deficiencies in performance and conduct [financial irresponsibility - specifically the lack of dependent support].  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

960513:	Unauthorized absence since 0730 from HQHQRON NADEP Cherry Point, NC.

960612:	Declared deserter.

960831:	Apprehended by Highway Patrol, Hampton, SC, at 2215 and was delivered to command at 2200, 04SEP96. (109 days)

960905:	To pre-trail confinement.

961021:	Special Court-Martial. (21 Oct 96 - 4 Nov 96)
	Charge I:  violation of the UCMJ, Article 85.
	Specification:  did, on or about 13 May 96, without authority and with intent to remain away thereform permanently, absent himself from his unit, to wit:  Naval Aviation Depot, Headquarters and Headquarters Squadron, located at Marine Corps Air Station, Cherry Point, N.C., and did remain so absent in desertion until he was apprehended on or about 31 August 1996.
	Charge II:  violation of UCMJ, Article 128.
	Specification:  did, on board Marine Corps Air Station, Cherry Point, N.C., on or about 11 May 1996, unlawfully touch D_ F_ by placing his hand on her thigh, grabbing her wrist and shirt with his hands, pushing her with hands and ripping her shirt with his hands.
	Finding:  to Charge I and the specification thereunder, guilty except words "and with intent to remain away therefrom permanently" and "in desertion".
	Finding: to Charge II and the specification thereunder, guilty
	Sentence:  Bad Conduct Discharge, confinement for 120 days, forfeiture of $580.00 pay per month for four months and reduction to E-1.
	CA action 970428:  Sentence approved and ordered executed except for execution of bad conduct discharge.

961104:	To confinement, Sentence of SPCM.

961104:	Applicant waived clemency review.

961208:	From confinement, to duty.

970724:	To appellate leave.

980226:	NMCCMR:  Affirmed findings and sentence.

980717:	COMA:  Petition for review denied. 

980814:	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 980814 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, and circumstances unique to this case, the Board found that the discharge was proper and equitable (D and E).

Relevant and material facts stated in a court-martial specification are presumed by the NDRB to be established facts.  With respect to a discharge adjudged by a court-martial case, the action of the NDRB is restricted to upgrades based on clemency. (B, Part IV)   The applicant's case was considered under the pertinent standards of equity to determine if any factors in this particular case merited clemency.  The NDRB found the applicant’s service record devoid of any mitigating or extenuating factors sufficient to offset the seriousness of the offenses for which the discharge was awarded.  The applicant is reminded that he remains eligible for a personal appearance hearing provided that an application is received within 15 years from the date of discharge.

Pertinent Regulation/Law (at time of discharge)

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. 

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 view DoD Directive 1332.28 and other Decisional Documents by going online at “afls14.jag.af.mil”.  

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
		720 Kennon Street SE Rm 309
		Washington Navy Yard DC  20374-5023