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

 ex-Pvt, USMC
Docket No. MD00-00637

Applicant’s Request

The application for discharge review, received 000421, requested that the characterization of service on the discharge be changed to entry level separation or uncharacterized.  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 001102.  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 (verbatim)

1.  The only issue I have is I made a mistake and wish I never had.  I obviously did not take the service seriously and regret it. I wish to have my discharge upgraded so I have a chance to obtain a better career.  I regret deeply my actions and would like to rectify them but its much to late for that. I made a mistake and Im sorry. My actions since the service have been excellent.  I request that you give me that chance.

Documentation

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

Copy of DD Form 214

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: USMCR(J)		861205 - 870126	COG

Period of Service Under Review:

Date of Enlistment:  870127		Date of Discharge:  900418

Length of Service (years, months, days):

	Active:    03  02  22
	Inactive:  None

Age at Entry:  20			Years Contracted:  6

Education Level:  12			AFQT:  23

Highest Rank:  LCpl

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  3.7 (10)		Conduct:  3.6 (10)

Military Decorations:  None

Unit/Campaign/Service Awards:  SSDR, MM

Days of Unauthorized Absence:  40 

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:

871221:	Counseled for deficiencies in performance and conduct.  [Assigned to Battalion Weight Control Program as of 21Dec87.  Initial weight: 180 lbs, % Body Fat: 21.7%, max allowable weight: 161 lbs.]   Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

871230:	Counseled for deficiencies in performance and conduct.  [Unsatisfactory ability to follow directions and continuous use of poor judgment.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

880223:	NJP for violation of UCMJ, Article 91:
Specification: Disrespectful toward Sgt Major on 31Dec87, to wit: by saying to him "I don't give a shit"
Violation of UCMJ, Article 92:
Specification: Failure to obey a lawful order on 2334, 31Dec87, to wit: to show his AFID card.
Awarded correctional custody for 30 days.  Not appealed.

880307:	Counseled for deficiencies in performance and conduct.  [Alcohol related incident.  Counseled 880105 concerning my alcohol-related incident.]   Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

880510:	Counseled for deficiencies in performance and conduct.  [You have received one NJP and you have had frequent alcohol related incidents to include reporting to work intoxicated.]   Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

880621:	Counseled for deficiencies in performance and conduct.  [Removed from the six month Battalion Weight Control Program on 880621 after achieving your goal of 161 pounds.]   Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

UNDATED:	Counseled for deficiencies in performance and conduct.  [You have received an NJP on 880223 and one summary court martial on 880926.  This frequent involvement with authorities shows a lack of respect for the rules and articles governing armed forces personnel.]   Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

880926:	Summary Court-Martial.
	Charge I:  violation of the UCMJ, Article 91.
	Specification 1: Disobeying a lawful order from a NCO on 880804.
	Specification 2: Disrespect toward a NCO on 880804.
	Specification 3: Disrespect toward a NCO on 880804/
	Charge II: violation of UCMJ, Article 134:
	Specification 1: Drunk and disorderly.
	Specification 2: Indecent exposure on 880804.
	Finding: to Charge I and II and the specifications thereunder, guilty.
	Sentence: Forfeiture of $400.00, confinement for 30 days, reduced to PFC.
	CA action 881013:  Sentence approved and ordered executed.

890806:	Applicant declared a deserter on 890806 having been an unauthorized absentee since 0700, 890707.

890816:	Applicant surrendered to military authorities on 890816 (1600).

891017:	Special Court-Martial.
	Charge I: violation of the UCMJ, Article 86:
	Specification: Absent from unit from 0700, 7Jul89 to 1600, 16Aug89 (40 days/surrendered).
	Charge II: violation of the UCMJ, Article 121:
	Specification: Wrongfully appropriate a 1987 Yugo automobile, a value of $2,800.00 the property of LCpl between 6Jul89 and 7Jul89.
	Findings: to Charge I and II and specifications, guilty.  
	Sentence: Forfeiture of $200.00 pay per month for 3 months, confinement for 3 months, reduction to Pvt, and a bad conduct discharge.
	CA 891017:  Sentence approved and ordered executed except for the BCD.

891017:	To confinement, Sentence of SPCM.

891130:	Applicant waived NC&PB review.

891130:	Applicant waived appellate review by the Navy-Marine Corps Court of Military Review.

891205:	From confinement.

891212:	To appellate leave.

900329:	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 900418 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 response to the applicant’s issue, 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.  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 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 121, larceny.

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