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

 ex-PVT, USMC
Docket No. MD00-00994

Applicant’s Request

The application for discharge review, received 000801, requested that the characterization of service on the discharge be changed to honorable and the reason for the discharge be changed to Convenience of the Government.  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 010301.  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.  My average conduct and proficiency marks were very good.  My conduct and proficiency marks were 4.5, 4.5 in grade and 4.4, 4.4 in service (Document 24, Prosecution Exhibit 3, Page 1 of 9).

2.  My record of promotions showed I was a very good service member.  I was meritoriously promoted for getting three people to join the Marine Corps (Document 24 Defense Exhibit A Page 6 of 6).

3.  I have been a good citizen since discharge (Documents 8-11). I have worked as an educator in inner city public schools (Document 12 and 13).  I received an Associate Degree from Harold Washington College, in August of 1998 (Document 14).  I will receive a Bachelor Degree in Elementary Education, from Chicago State University, in December 2000 (Documents 15-22).  I worked for Census 2000 (Document 23).

4.  My record of court-martial convictions and Article 15s indicates only one minor offense.  I was absent without leave for 51 days (Document 24 Page 1).  I went home for Thanksgiving weekend and stayed home to care for my parents.  I voluntarily returned to my unit so I could deal with my problems in the right way.

5.  My ability to serve was impaired because of my family problems.  My father had recently had surgery and my mother is disabled.  Several of my family member died within a two-year period.  I lost my paternal grandmother L___ and my cousin Pearl in November of 1988, and my Aunt E_____ died in December of 1988 (Document 1-3).  These three deaths occurred while I was still in bootcamp.  My family did not tell me until I went to home on leave after bootcamp.  In May of 1989, my Uncle N____ died (Document 4) and my friend L____ committed suicide, my Uncle J.B. died in June of 1989 (Document 5), and my cousin M____ was murdered in October 1989.  in July of 1990, my nephew M____ was murdered and my maternal grandmother N_____ died (Document 6-7).  My cousin J__ was killed in a car accident in August of 1990.

6.  I tried to serve and wanted to, but just could not do it, because of the grieve I suffered as a result of all the deaths in my family (Document 24 Defense Exhibit A Pages 1-6).

7.  The punishment I got at discharge was to harsh, it was much worse than most people got the same offense.  I was sentenced to a Bad Conduct Discharge, 75 days confinement, reduction in rank to E-1, and forfeiture of $400.00 pay per month for three months.  This was my first and only offense during my service period.  The judge only deliberated for four minutes, she could not have thoroughly read the letter in Defense Exhibit A (Document 24 Page 47).

8.  Before I went AWOL, I tried to apply for a Hardship Discharge base on my conscientious belief and when I returned to my unit I requested an administrative discharge in lieu of trial, however, I was denied.

Documentation

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

Copies of DD Form 214 (2)
Appellate Review Letter (2 pgs)
Copy of Paternal Grandmother's Obituary
Copy of Cousin P____'s Obituary
Copy of Aunt E___'s Obituary
Copy of Uncle N____'s Obituary
Copy of J.B.'s Obituary
Copy of Nephew M___'s Obituary
Copy of Maternal Grandmother's Obituary
Personal Reference Letters (4)
South Central Community Services Letter of Commendation
Harvey School District 152 Performance Evaluation
Dr S____ P____'s Letter of Recommendation
Professor C____ C____'s Performance Evaluation
Professor B____ J____'s Performance Evaluation
Acceptance Letter into the College Education
Results of College of Education Oral Interview
Results of College of Education Portfolio Assessment
Spring 2000 Grade Transcript
Illinois Teacher Basic Skill Test Results
Census 2000 Pay Stub
Special Court Martial Trial Record

PART II - SUMMARY OF SERVICE

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

	Active:   USMC		None
	Inactive: USMCR(J)		880312 - 880918	COG

Period of Service Under Review:

Date of Enlistment:  880919		Date of Discharge:  920325

Length of Service (years, months, days):

	Active:    03  06  05
	Inactive:  None

Age at Entry:  18			Years Contracted:  4 

Education Level:  12			AFQT:  52

Highest Rank:  LCpl

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  3.8 (6)			Conduct:  3.8 (6)

Military Decorations:  None

Unit/Campaign/Service Awards:  Rifle Marksman Badge, SSDR 

Days of Unauthorized Absence:  51 

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:

910402:	Special Court-Martial.
	Charge I:  violation of the UCMJ, Article 86 (2 Specifications):
	Specification 1: Absent from unit 900814 until 900815
	Specification 2: Absent from unit 901126 until 910115 [51days/S].
	Findings:  to Charge I and specification 1 thereunder, not guilty.  To specification 2 under Charge I, guilty.
	Sentence:  Conf for 75 days, forfeiture of $400.00 pay per month for 3 months, reduction to E-1, and a bad conduct discharge.
	CA 910520:  Sentence approved and, except for the bad conduct discharge, ordered executed, but the execution of that portion of the sentence thereof adjudging all confinement in excess of 45 days is hereby suspended for a period of 6 months from the date of trial, at which time, unless sooner vacated, the suspended confinement will be remitted without further action.
	
910402:	To confinement, Sentence of SPCM.

910509:	From confinement, to duty.

910520:	To appellate leave.

910806:	NC&PB denied clemency and restoration.

911018:	NMCCMR:  Affirmed findings and sentence.

920309:	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 920325 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 issues 1 and 2, the Board found that good conduct and proficiency marks, as well as his recruiting three Marine recruits notwithstanding, the applicant’s discharge was based on his violation of Article 86, UCMJ and his subsequent Special Court Martial conviction. When a Marine’s service has been honest and faithful, it is appropriate to characterize that service as honorable.  A punitive discharge is warranted when significant negative aspects of a member's conduct or performance of duty outweigh the positive aspects of the member's military record.  The applicant’s service was marred by a conviction at a Special Court-Martial on 910402.  An upgrade to honorable would be inappropriate.  Relief is therefore denied.

In the applicant’s issue 3, the Board applauds the applicant’s achievements and encourages him to continue in his academic pursuits. The NDRB is authorized to consider post-service factors in the recharacterization of a discharge (D).  However, there is no law or regulation which provides that an unfavorable discharge may be upgraded based solely on the passage of time, or good conduct in the civilian life subsequent to leaving the service.  Normally, to permit relief, an error or injustice must be found to have existed during the period of enlistment in question.  No such error or injustice is evident in the applicant’s service record.  Relief on this basis is denied.

In the applicant’s issues 4 and 7, the Board disagrees with the applicant’s characterization of his “…record of court-martial convictions and Article 15s…” as minor offenses.  The Board further disagrees with the applicant that his punishment was too harsh.  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 86, unauthorized absence for more than 30 days.  Clearly, an unauthorized absence lasting 51 days is not a minor offense and demonstrates a willful disregard for military regulations and orders.  The fact that this period of unauthorized absence occurred during a period of national mobilization for Operations Desert Shield and Desert Storm exacerbates the impact the applicant’s absence made on his unit.  Relief denied.

In the applicant’s issues 5 and 6, the Board sympathizes with the losses suffered by the applicant.  The Board also is aware of the many channels of assistance available to service members in unique situations such as the loss of several family members.  However, there is no evidence in the record that the applicant pursued chain of command remedies or sought pastoral assistance through the command chaplain services.  In spite of the understandable grief surrounding these events, naval service obligates the member to obey lawful orders and regulations.  In this case, the applicant chose to violate those regulations, fully understanding the consequences of his actions. The NDRB recognizes that serving in the Marine Corps is very challenging.  Our country is fortunate to have men and women willing to endure the hardships and sacrifices required in order to serve their country.  It must be noted that most Marines serve honorably and well and therefore earn honorable discharges.  In fairness to those Marines, commanders and separation authorities are tasked to ensure that undeserving Marines receive no higher characterization than is due. (XX, Part IV)  While the NDRB respects the fact that the applicant tried, his service is equitably characterized as discharged due to Bad Conduct. Relief is not warranted.

In the applicant’s final issue, 8, there is no evidence in the record that the applicant applied for a hardship discharge.  There is no evidence the applicant applied for discharge on the basis of conscientious objections to military service.  In any UCMJ offense, the convening authority is under no obligation to accept a request from the accused for separation in lieu of trial.  The applicant’s offense of absenting himself from his unit while the majority of his Division was deployed to the Persian Gulf theater of operations was especially egregious and this Board, as well as the Navy Marine Corps Court of Military Review and the Naval Clemency and Parole Board are unanimous in the opinion that clemency is not warranted.  Relief, therefore is denied.

The following is provided for the applicant’s edification.  The NDRB is authorized to consider outstanding post-service conduct, to the extent that such matters provide a basis for a more thorough understanding of the applicant’s performance and conduct during the period of service under review.  At this time the applicant has not provided sufficient documentation of good character and conduct.  Therefore no relief will be granted.  The applicant is reminded that he is eligible for a personal appearance hearing provided the application is received within 15 years from the date of discharge.  Representation at a personal appearance hearing is not required but is highly recommended

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 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