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

 ex-Pvt, USMC
Docket No. MD00-00650

Applicant’s Request

The application for discharge review, received 000424, requested that the characterization of service on the discharge be changed to honorable.  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 001206.  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.  I beleive my discharge should be change based on maritorious clemency.  In documents 2 & 3 I am showing self improvement through education.  In documents 4 to 9 you will see my job preformance.  In documents 10 to 14 are character references.   Document 15 is a personnal acheivement that took 2 years and 9 months of deticalkkmtion and hard work.  Document 16 is a family acheivment.

It should also be noted that my discharge was based on one isolated incident in 8 years of service with no other adverse action ever taken.  In fact when you review serice record you will find numorous maritorious acheivments 2 good conduct medals, 1 Naval acheivment Medal and numerous outstanding fitness reports.

Documentation

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

Copy of DD Form 214 from previous enlistment
Letter from applicant dated March 14, 2000
College transcript
Continued education history
Six outstanding performance awards from Food Lion, Inc.
Five personal references dated July 1, 1999, March 7, 2000, March 10, 2000, March 14, 2000 and April 11, 2000
Copy of Black Belt Certificate dated October 15, 1998 (personal achievement)
Copy of certificate for most supportive family dated August 23, 1997
Copy of certification of military service dated July 27, 1999
Thirty nine pages from applicant's service record

PART II - SUMMARY OF SERVICE

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

	Active:   USMC		780626 - 810514	HON
		   USMC		810515 - 840705	HON
	Inactive: USMCR(J)		780318 – 780625	COG

Period of Service Under Review:

Date of Enlistment:  840706		Date of Discharge:  860701

Length of Service (years, months, days):

	Active:    01  11  26
	Inactive:  None

Age at Entry:  23			Years Contracted:  6

Education Level:  12			AFQT:  73

Highest Rank:  SSgt

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

Military Decorations:  None

Unit/Campaign/Service Awards:  GCM (2), MM (2), NAM

Days of Unauthorized Absence:  None

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:

860425:	Special Court-Martial.
	Charge I:  violation of the UCMJ, Article 112A
	Specification: wrongfully use cocaine between 31Dec85 and 9Jan86.
	Findings: to Charge I and specification thereunder, guilty.  
	Sentence: Reduction to Pvt and a bad conduct discharge.
	CA 860701:  Sentence approved and ordered executed except for the BCD.

860702:	To appellate leave.

860604:	Applicant waived clemency review.

860812:	NMCCMR:  Affirmed findings and sentence.

861101:	COMA:  Petition for review denied.

870116:	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 860701 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. (C, 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’s post-service documentation needs to be more encompassing than those provided.  The applicant should have provided more evidence of continuing educational pursuits, employment records, documentation of community service, certification of non-involvement with civil authorities and proof of his not using drugs in order for clemency based on post-service conduct. The applicant is reminded that he remains eligible for a personal appearance hearing provided that an application is received prior to 30 June 2001.

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 112a, wrongfully use cocaine.

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