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

 ex-Pvt, USMC
Docket No. MD00-00306

Applicant’s Request

The application for discharge review, received 991029, 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 list any representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 000831.  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/As a result of a courts-martial (SPCM) – Other, authority: MARCORSEPMAN Par. 1105.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

1.  I have done the papers for almost a year everyone passed the buck.  Congressman S_____ has represented us in this matter.  My son is deceased committed suicide his papers were sent & cannot be read I know he went AWOL turned himself in & did time in brig in Calif.  So he could get other than honorable I would like to have this he was proud to be a marine & did duty O.S Guam would like to have foot stone saying so please help us.

Documentation

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

Copy of Death Certificate

PART II - SUMMARY OF SERVICE

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

	Active:   USMC		None
	Inactive: USMCR(J)		800719 – 800911	COG

Period of Service Under Review:

Date of Enlistment:  800912		Date of Discharge:  850122

Length of Service (years, months, days):

	Active:    04  04  09
	Inactive:  None

Age at Entry:  18			Years Contracted:  4 

Education Level:  12			AFQT:  58

Highest Rank:  LCpl

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  4.3 (6)			Conduct:  4.1 (6)

Military Decorations:  None

Unit/Campaign/Service Awards:  Rifle Marksman Badge 

Days of Unauthorized Absence:  605 

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:

820209:	NJP for violation of UCMJ, Article 92: Disobedience of a lawful written order, to wit: BksO 1700.22B dtd 791022, by consuming alcohol beverages in room 101, Bldg 769, U.S.Magazine, on or about 820121.
Awarded forfeiture of $75.00 per month for 1 month (suspended for 3 months), extra duties for 7 days.  Not appealed.
820209:	Counseled as to the possible effect upon continuing to hold a security clearance and/or retention in the Marine Corps Personnel Reliability Program.

820627:	To UA, dropped from the roll and declared a deserter.

830228:	Applicant surrendered to CCPET Brooklyn, New York at 1010, 28FEB83 and subsequently delivered to Naval Training Center, Great Lakes, IL.
830404:	Applicant to unauthorized absence at 0800..

830504:	Applicant declared a deserter on 830505 having been an unauthorized absentee since 0800,830404 from 3/4 2ndMarDiv, CamLej.
 
840402:	Applicant returned from unauthorized absence.  Surrendered to CCPET Brooklyn, New York at 1050, 840402.

840531:	Special Court-Martial.
	Charge I: violation of the UCMJ, Article 86: Without authority absent himself from his unit from on or about 0001, 820627 until 830228 [241days/S], 
	Additional Charge: violation of the UCMJ, Article 86: Without authority absent from his command from on or about 830404 until 840402 [364days/S].
	Findings:  to Charge I and specification 1 thereunder, guilty.  To Additional Charge and specification thereunder, guilty.  
	Sentence:  Forfeiture of $397.00 pay per month for 3 months, reduction to E-1, and a bad conduct discharge.
	CA 840621:  Sentence approved, but execution of BCD is suspended for 12 months, at which time, unless the suspension is sooner vacated, the suspended portion of the sentence will be remitted without further action.
	SA 840627:  Sentence as approved and partially suspended by the convening authority is approved

841011:	Counseled for deficiencies in performance and conduct.  [Possession of a mutilated I.D. Card with wrong birth date, violating base traffic regs; speeding 45mph in 35mph zone on CPNH RD Camp Pendleton, CA on or about 0010, 840828 BN drug & alcohol OIC/NCOIC, violating base traffic regs; excessive speeding, driving under unsafe driving conditions on Santa Margarita RD Camp Pendleton, CA resulting in a traffic accident on or about 2355 840831, Cashing two party checks through the Marine Corps Exchange between the dates 840828-840905 totaling $758.00 plus $135.00 service charge, said check bounced, By order of CG, MCB Camp Pendleton, CA your driving priviledges aboard base are revoked for twelve months, effective 841008 (ref; ltr: 5101 over BS1/RL/cal dtd 28 Sep 84.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

840724:	NMCCMR:  Affirmed findings of guilty and sentence as approved.

841026:	To confinement, Sentence of SPCM.

841119:	From confinement, to duty.

841224:	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 850122 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).

In the applicant’s issue 1, the Board determined this issue is without merit.  The deceased, ex-military member’s mother requests that her son’s discharge be upgraded to General (under Honorable conditions), so a foot stone could be placed on his grave.  The ex-military member was convicted at Special Court Martial of several violations of the UCMJ, of a serious nature.  Therefore, the Board can only consider clemency as a reason for recharacterization of his discharge.  The Board regrets, however, that there is no basis for granting clemency in this case and denies the applicant’s request.  Relief denied.

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 P1900.16C), effective 821001 until 890626. 

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