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

ex-PVT, USMC
Docket No. MD01-00688

Applicant’s Request

The application for discharge review, received 010423, 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 did not list any representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 011108.  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.  I, R____ M. B____ respectfully request that the board reviewing my requested action considers my service record and character in its decision.

Documentation

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

Copy of Certificate of Commendation
Copy of Certificate of Completion (Physical Fitness Test ) (Score of 299)
Copy of Certificate of Completion from Metropolitan Police Department (Civil Disturbance Unit Training)
Copy of Certificate of Completion (Primary Marksmanship Instructor Course MOS 8531)
Copy of Certificate of Completion (Rifleman Military Occupational Specialty 0311) 
Copy of Appointment to PFC Certificate
Copy of Appointment to LCpl Certificate (Meritoriously)
Copies of Character Reference Letters (3)
Copies of DD Form 214 (2)

PART II - SUMMARY OF SERVICE

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

	Active:   USMC		None
	Inactive: USMCR(J)		950310 - 951009	COG

Period of Service Under Review:

Date of Enlistment:  951010		Date of Discharge:  990630

Length of Service (years, months, days):

	Active:    03  05  12
	Inactive:  None

Age at Entry:  18			Years Contracted:  4 

Education Level:  12			AFQT:  95

Highest Rank:  LCpl

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  4.4 (6)			Conduct:  4.3 (6)

Military Decorations:  None

Unit/Campaign/Service Awards:  Rifle Expert Badge, COC, MUC(MARBKS WASH DC 950719-970630), NDSM 

Days of Unauthorized Absence:  None 

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:

970919:	NJP for violation of UCMJ, Article 86:Did on or about 0700-0830, 970916, absent himself from his appointed place of duty to wit: B Co, MarBks, WashDC, violation of UCMJ Article 92: Did on or about 970915, violate BksO 5800.3j by drinking alcohol while underage.
	Award:  Forfeiture of $237.00 per month for 1 month, restriction and extra duty for 14 days.  Not appealed.

980129:	Special Court-Martial.
	Charge I:  violation of the UCMJ, Article 81: Did, on 970712, conspire with LCpl T___ L. N____, USMC, LCpl R____ T. N_____, USMC, LCpl C___ R. B___ Jr., USMC, and LCpl S____ M. F____, USMC, to commit an offense under the UCMJ, to wit: assault with a dangerous weapon or other means or force likely to produce death or grievous bodily harm, and in order to effect the object of the conspiracy LCpl B____ did, on 970712, carry a chemical smoke grenade to Remington's nightclub, Washington, DC, and discharge such grenade into Remington's nightclub, Washington, DC.  Charge II:  violation of the UCMJ, Article 92: Did on 970506, violate a lawful general order, to wit: Marine Corps Order 8020.10 dated 951018, by wrongfully removing at least one (1) chemical smoke grenade from a training exercise conducted at the Military Operation in Urban Terrain (MOUT) Training Facility, Marine Corps Base, Quantico, Virginia.  Charge III: violation of the UCMJ, Article 108: Did, on 970712, without proper authority, willfully suffer one (1) chemical smoke grenade, and explosive of a value less than $100.00, military property of the United States, to be wrongfully disposed of by discharging the said chemical smoke grenade inside Remington's nightclub, Washington, DC.  Charge IV: violation of the UCMJ, Article 116: Did, on 970712, cause a breach of the peace by wrongfully discharging a chemical smoke grenade in a public place, to wit: Remington's nightclub, Washington, DC.  Charge V: violation of the UCMJ, Article 121: Did, on active duty, at or near the Military Operations in Urban Terrain (MOUT) Training Facility, Marine Corps Base, Quantico, Virginia, on 970506, steal one (1) chemical smoke grenade, military property of a value less than $100.00, the property of the U.S. Government.  Charge VI: violation of the UCMJ, Article 128: Did, on 970712, commit an assault upon Mr. J____ L___, Mr. E____ B____, Mr. J_____ K_____, Mr. S____ C____, Mr. S____ G____, and Mr. B____ B_____ by wrongfully exposing them to the harmful effects of O-Cholorbenzalmalonontrile (CS) gas by discharging at least one (1) chemical smoke grenade inside Remington's nightclub, Washington, DC, as such chemical smoke grenade was a dangerous weapon or means likely to produce death or grievous bodily harm.  Charge VII: violation of the UCMJ, Article 134: Did, on 970712, at an unknown location in Washington, DC, on 970712, violate District of Columbia Code 1981, Part V, Title 25, Chapter 1, 25-130 by wrongfully consuming alcoholic beverages while under the age of 21.
	Findings:  to Charge I and specification thereunder, guilty except the words, "with a dangerous weapon or other means of force likely to produce death or grievous bodily harm," and substituting thereof, the words, "consummated by a battery ." Of the excepted words: Not guilty.  Of the substituted words, guilty.  Of the specification as expected and substituted, guilty.  To Charge II and specification thereunder, not guilty.  To Charge III and specification thereunder, guilty.  To Charg IV and specification thereunder, guilty.  To Charge V and specification thereunder, not guilty.  To Charge VI and specification thereunder, guilty, excepting the words, "commit an assault upon, "substituting thereof the words, " unlawfully expose;" and excepting the words, "by wrongfully exposing them, and excepting the words, "at least, " and the words, " as such chemical smoke grenade was a dangerous weapon or means likely to produce death or grievous bodily harm." To the excepted words, not guilty; to the specification as excepted and substituted, guilty.  To Charge VII and specification thereunder, not guilty.
	Sentence:  Confinement for 120 days, reduction to E-1, and a bad conduct discharge.
	CA 980814:  Sentence approved and ordered executed except for the BCD.
	
980129:	To confinement, Sentence of SPCM.

980519:	From confinement, to appellate leave.

990210:	NC&PB denied clemency.

990325:	NMCCMR:  Affirmed findings and sentence.

990630:	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 990630 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.

The applicant’s discharge characterization accurately reflects his service to his country.  The discharge was proper and equitable.  Additionally, 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.  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 [ e.g., 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