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

ex-PVT, USMC
Docket No. MD01-00481

Applicant’s Request

The application for discharge review, received 010305, 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 listed Veterans of Foreign Wars as his representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 010928.  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/COURT-MARTIAL, authority: MARCORSEPMAN Par. 1105.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

1. Ladies and gentlemen of the naval discharge review board; I would like to thank you for reviewing my case.  In no way am I trying to justify my actions, however I believe that I do need to supply some background information.

Upon enlisting in the Marine Corps I was planning on being a career Marine.  Even then I knew that I wanted to be a part of law enforcement.  I wanted to enlist to be a military police officer but my recruiter told me that I could not He told me that because I received a ticket for throwing rocks as a juvenile this would prevent me from being an MP.  I did not understand it and ended up going in on an "open contract' the day I shipped.  I also helped the recruiter recruit three of my friends and at that time that made me eligible for meritorious promotions to PFC and Lance Corporal.

As graduation from boot camp approached I received my orders.  I was being sent to the school of infantry and was not even given my meritorious rank that I thought I had earned I returned home for the 10 days of leave and then returned to the school of infantry.  After a few days of thinking about what was happening to me I got scared and departed while on weekend liberty.

Now that I have had ample time to think about and live with the consequences of this decision I now know that it was the worst decision I have ever made.  At the time I made the decision to leave I did not understand the scope and grandeur of what I was doing.  Ever since then I have regretted putting the Marine Corps through the expense and hassle of training me to be a Marine.  I do know that the training and life experience I have gained from the Marine Corps has benefited me greatly.

Today I am a Police Officer for a small agency in Colorado.  I am very dedicated to the community that I work in and do the best job that I can.  I specialize in driving under the influence of alcohol and drugs.  I am out nightly serving my community and country still but in a different manner than being a Marine.  I am fighting for our communities.  In my field I intercept many drugs of different types and gather intelligence that we later use to help stop the dug supply.  I have removed more than 300 drunk drivers from the streets in an effort to prevent the fatalities that occur due to drunk driving.

I have paid dearly for leaving the Marine Corps in the manner I did I feel that my punishment has reached much further than what anyone could have ever imagined. The reality of the Bad Conduct Discharge I received and the entry on my criminal record has been devastating.  It has prevented me from getting jobs with bigger and better agencies.  I would like to better my service to Colorado's residents but with this discharge I simply can't.  I would also like to have my own family but can't do that either until I can make a better living.

In closing I give my sincerest apologies to the Marine Corps and department of the Navy for my actions.  To this day I feel very bad for what I did and probably always will.  I have grown into a better more responsible person since my departure from service.  I no longer make choices without first thinking of the possible ramifications.  I would do anything to change what happened but I can't.  I can only go forward and serve my country and community as a police officer.  I only ask that the board please grant the upgrading of my discharge.  Sincerely,

Documentation

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

Copy of DD Form 214
Letter from Applicant
Copy of Certificate of Completion from Red Rocks Community College (Law Enforcement Training Academy)
Copy of Standardized Examination Certificate from State of Colorado
Copy of Certificate of Completion (64 hours of First Responder)
Copy of Certificate of Completion (16 hours Horizontal Gaze Nystagmus)
Copy of Certificate of Completion (8 hours Doppler Radar)
Copy of Certificate of Completion (32 hours PPCT Defensive Tactics System)
Copy of Certificate of Completion (Operators Training Course 990226)
Copy of Certificate of Completion (20 hours Vehicle Identification Number Inspection)
Copy of Certificate from State of Colorado (Inspector of Vehicle Identification Numbers)
Copy of Certificate of Competency from Supervisor of Park County Sheriff Office
Copy of Certificate of Completion (Armorer's Course)
Copy of Certificate of Completion (8 hours Drugs That Impair Driving)
Copy of Certificate of Completion (32 hours RMITS DUI/SFST)
Copy of Certificate of Completion (Standardized Field Sobriety Test Battery Instructor
Copy of Certificate of Completion (Operator's Training Course 000917)
Copy of Notary Public Certificate for State of Colorado
Character Reference Letters (3)
Letter of Commendation from Attorney at Law F. P___ F___
Copy of Letter of Commendation from Applicant's Supervisor for assisting in the apprehension of a robbery suspect while off duty.
Letter of Commendation 

PART II - SUMMARY OF SERVICE

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

	Active:   USMC		None
	Inactive: USMCR(J)		931118 - 931128	COG

Period of Service Under Review:

Date of Enlistment:  931129		Date of Discharge:  960105

Length of Service (years, months, days):

		Active:    01  10  00
		Inactive:  00  00  00

Age at Entry:  18			Years Contracted:  4

Education Level: 10			AFQT: 62

Highest Rate:  PVT

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  4.3 			Conduct:  2.2 (extracted from court martial records)

Military Decorations:  None

Unit/Campaign/Service Awards:  Rifle Sharpshooter Badge, NDSM, GCM 

Days of Unauthorized Absence:  98 

Character, Narrative Reason, and Authority of Discharge (at time of issuance):

BAD CONDUCT DISCHARGE/COURT-MARTIAL, authority:  MARCORSEPMAN Par. 1105.

Chronological Listing of Significant Service Events:
	
940811:	Special Court-Martial.
	Charge I:  violation of the UCMJ, Article 86 (2 Specifications):
	Specification 1: Did on 940316 without authority, absent himself from his org until 940407.
	Specification 2: Did on 940410 without authority, absent himself from his org until apprehended on 940627.
	Findings:  to Charge I and specification 1 and 2 thereunder, guilty.  
	Sentence:  Fine of $555.00 pay per month for 3 months, confinement for 122 days, and a bad conduct discharge.
	CA 950110:  Sentence approved and, except for the bad conduct discharge, ordered executed, but execution of that portion of the sentence adjudging confinement in excess of 60 days is suspended for a period of 12 months from the date the sentence was adjudged, at which time, unless sooner vacated, the suspended confinement will be remitted without further action.
	
950823:	To appellate leave.

950814:	NMCCMR:  Affirmed findings and sentence.

960103:	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 960105 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).

Issue 1.  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.   Relief denied.

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 civilian life, subsequent to leaving the service.  However, the NDRB is authorized to consider outstanding post-service factors in the recharacterization of a discharge, 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.  Verifiable proof of any post-service accomplishments must be provided in order for the applicant to claim post-service conduct and behavior as a reason to upgrade a less than Honorable discharge.  Evidence of continuing educational pursuits, an employment record, documentation of community service, certification of non-involvement with civil authorities and proof of his not using drugs, are examples of verifiable documents that should have been provided to receive consideration for clemency based on post-service conduct.  The applicant did not provide sufficient documentation to warrant an upgrade to his discharge, particularly regarding voluntary community service and certification of non-involvement with civil authorities and proof of his not using drugs.  He is reminded that he remains eligible for a personal appearance hearing, provided an application is received, at the NDRB, within 15 years from the date of his discharge.  The applicant can provide additional documentation to support any claims of post-service accomplishments at that time.  Legal representation at a personal appearance hearing is highly recommended but not required.  Relief denied.

Pertinent Regulation/Law (at time of discharge)

A.  Paragraph 1105, DISCHARGE ADJUDGED BY SENTENCE OF COURT-MARTIAL, of the Marine Corps Separation and Retirement Manual, (MCO P1900.16E), effective 950818 until present. 

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 “afls10.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