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

ex-Pvt, USMC
Docket No. MD00-01040

Applicant’s Request

The application for discharge review, received 000907, requested that the characterization of service on the discharge be changed to general/under honorable conditions, entry-level separation or uncharacterized.  The applicant requested a documentary record discharge review.  The applicant listed the Veterans of Foreign War as the representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 010329.  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.  Being a Marine was a very proud experience for me.  My family has a great military tradition which I was honored to be part of.  Unfortunately I got married while I was serving and soon after my wife was stricken with cancer.  Since I was very young, and very concerned I didn't request leave I simply left for home.  By the time my wife was better after having surgery and rehabing I was gone long enough to warrant a special court martial.  At the court martial believing I had ruined any chance at a military career I requested a Bad Conduct Discharge so I could be with my wife.  Looking back I see I was very wrong in not going through the proper channels.  I am not asking for a hand out.  I want to re-enlist in either the Marine Corps, or Navy to prove I am worthy to do this I need a discharge up-grade.  Please give me a second chance.  Thank you.  Sincerely yours

2.  Applicant indicated above requested that Veterans of Foreign Wars act as counsel concerning his application.  His records were reviewed on January 19, 2001 and the following comments are hereby submitted.

The applicant enlisted in the United States Marine Corps on April 8, 1987.  He was released from active duty with a bad conduct discharge.  A special court martial was conducted on July 13, 1989 at the Marine Corps Air Station, Cherry Point, North Carolina.  The applicants plead guilty on all counts of unauthorized absence.  The applicant does not contest the sentence or the Special Court Martial.

We refer this case to the Board for their careful and compassionate consideration and request the applicant's discharge be reviewed for an upgrade to a General Under Honorable based on Equity.

Documentation

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

Letter from Office of Legislative Affairs Correspondence dated August 15, 2000 re inquiry from United States Senate
Copy of DD Form 214

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: USMCR(J)		870123 - 870407	COG

Period of Service Under Review:

Date of Enlistment:  870408		Date of Discharge:  900821

Length of Service (years, months, days):

	Active:    03  04  14
	Inactive:  None

Age at Entry:  19			Years Contracted:  4

Education Level:  12			AFQT:  50

Highest Rank:  PFC

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  4.6 (2)			Conduct:  4.6 (2)

Military Decorations:  None

Unit/Campaign/Service Awards:  None

Days of Unauthorized Absence:  555

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:

890713:	Special Court-Martial.
	Charge I:  violation of the UCMJ, Article 86 (2 Specifications):
	Specification 1: Unauthorized absence from 23Nov87 to 22Feb88 (91 days).
	Specification 2: Unauthorized absence from 26Feb88 to 5Jun89 (464 days/apprehended).
	Findings:  to Charge I and specification thereunder, guilty.  
	Sentence: Fine of $400.00, confinement for 3 months, reduction to Pvt, and a bad conduct discharge.
	CA 891107:  Sentence approved and ordered executed except for the BCD.

890622:	To confinement.

890728:	From confinement.

890809:	To appellate leave.

890713:	Applicant waived clemency review.

900410:	NMCCMR:  Affirmed findings and sentence.

900821:	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 900821 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 advises the applicant that concerning a change in reenlistment code, the NDRB has no authority to change reenlistment codes or make recommendations to permit reentry into the naval service or any other of the Armed Forces.  The NDRB has no jurisdiction over reenlistment, reentry, or reinstatement into the Navy or Marine Corps.  Reenlistment policy is promulgated by the Commandant, United States Marine Corps, Code MMEA, 3280 Russell Road, Quantico, VA 22134.  A request for a waiver is normally done only during the processing of a formal application for enlistment through a recruiter.  Relief, on this basis is therefore, denied.

In the VFW issue 2, 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 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.  While the NDRB respects the fact that the applicant tried, his discharge is equitably characterized as for Bad Conduct-Desertion.  Relief is not warranted.

Relevant and material facts stated in a court-martial specification are presumed by the NDRB to be established facts.  With respect to a discharge or dismissal adjudged by a court-martial case tried under the Uniform Code of Military Justice, the action of the NDRB extends only to a change in the discharge or dismissal for purpose of clemency. (B, art IV) 
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 have been found to have existed during the period of enlistment in question.  No such error or injustice is evident in the applicant’s service record, and the applicant provided no evidence of credible post-service conduct.  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 highly recommended but not mandatory.

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