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

ex-PVT, USMC
Docket No. MD01-00515

Applicant’s Request

The application for discharge review, received 010312, 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 010906.  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 reason for wanting my discharge changed are as follows: Upon receiving an OTH discharged, I really had no choice in the matter, my wife was ill and pregnant and I needed to be w/her.  So instead of being angry I accepted the terms giving by one judge.  I have been separated from the USMC for near 9 years & wish to have all my records cleared as I have begun a new life since my discharge & want to have my slate cleared.  Thank you for your consideration in this matter.

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:   USMC		None
	Inactive: USMCR(J)		890223 - 890413	COG

Period of Service Under Review:

Date of Enlistment:  890414		Date of Discharge:  920910

Length of Service (years, months, days):

	Active:    03  04  27
	Inactive:  None

Age at Entry:  20			Years Contracted:  6 

Education Level:  12			AFQT:  85

Highest Rank:  LCpl

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  4.5 (7)			Conduct:  3.7 (7)

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM 

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:

910618:	Special Court-Martial.
	Charge I:  violation of the UCMJ, Article 92:
	Specification 1: On 901128, fail to obey a lawful order given by LCRD D___ E. L___, USNR, to verbally advise any prospective sexual partners of his HIV positivity prior to any sexual activities. 
	Specification 2: On 901128, fail to obey a lawful order given by LCRD D___ E. L___, USNR, by engaging in sexual activities without use of a condom.
	Charge II:  violation of the UCMJ, Article 128: On 901128, commit an assault with means or force likely to product death or serious bodily harm.  Charge III: violation of the UCMJ, Article 134: On 901128, wrongfully engage in sexual intercourse.
	Findings:  to Charge I and specification 1 and 2 thereunder, Dismissed.  To Charge II and specification thereunder, guilty.  To Charge III and specification thereunder, Withdrawn.
	Sentence:  Reduction to E-1, and a bad conduct discharge.
	CA 910911:  Sentence approved and ordered executed except for the BCD.

911129:	To appellate leave.

920529:	Accused moved to withdrawn his case from appellate review.

920602:	NMCCMR:  granted motion and returned the record of trial to the Judge Advocate General of the Navy appropriate disposition.

920724:	Applicant waived rights to have case reviewed by the Naval Clemency and Parole Board [Extracted from SJA's message].

920812:	SJA review determined the case sufficient in law and fact.

920817:	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 920910 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.  The applicant states he has been separated from the USMC for 9 years and wants his records cleared.  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.

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.  However, there is no law or regulation that 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.  In determining whether a case merits a change based on post-service conduct, the NDRB considers the length of time since discharge, the applicant's record of community service, employment, conduct, educational achievements, and family relationships. 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.  The applicant's efforts need to be more encompassing than those provided.  The applicant should have produced evidence of continuing educational pursuits, a verifiable employment record, documentation of community service, and certification of non-involvement with civil authorities in order for consideration for clemency based on post-service conduct.  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 remains eligible for a personal appearance hearing provided that an application is received within 15 years from the date of discharge.  Representation at a personal hearing is not mandatory, but is strongly recommended.  This representation need not be a lawyer, but may be any person of stature and good standing in the community including the various veterans’ organization.

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 92, failure to obey a lawful order.

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