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

 ex-Pvt, USMC
Docket No. MD01-00921

Applicant’s Request

The application for discharge review, received 010709, 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 designated the American Legion as the representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 020715.  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, as submitted

1.  (Equity Issue) Pursuant to 10 USC 874 (b) (UCMJ, Article 74) and in accordance with SECNAVINST 5420.174C, enclosure (1), paragraphs 2.24 and 9.3, this former member requests the Board’s clemency relief with up-grade of his characterization of service to General (Under Honorable Conditions) on the basis of his post-service conduct. 

Documentation

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

Character Reference letter from F_ D. D_, AIC, DTD Jan 7, 2001
Letter from applicant
Copy of DD Form 214

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: USMCR(J)		940222 - 940605	COG

Period of Service Under Review:

Date of Enlistment:  940606		Date of Discharge:  960430

Length of Service (years, months, days):

	Active:    01  10  25
	Inactive:  None

Age at Entry:  19			Years Contracted:  4 

Education Level:  12			AFQT:  32

Highest Rank:  PFC

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  3.9 (5)		Conduct:  3.2 (6)

Military Decorations:  None

Unit/Campaign/Service Awards:  Rifle Expert Badge, NDSM 

Days of Unauthorized Absence:  94 

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:

950207:	48 hour UA/AWOL.  Phone call to PNOK.

950215:	10 day UA/AWOL.  Letter to PNOK forwarded on this date.

950307:	Applicant declared a deserter on 950307 having been an unauthorized absentee since 0530, 950205 from Battalion Landing Team 2/1, Camp Pendleton, CA.

950508:	Report of Return of Absentee:  Applicant surrendered to the Battalion Landing Team 2/1, Camp Pendleton, CA on 950508 (0700). 

950508:	To confinement.

950621:	Special Court Martial
	Charge I:  violation of the UCMJ, Article 86: on 5 Feb 95, without authority, absence himself from his organization until 8 May 95.
	Additional Charge:  violation of the UCMJ, Article 112a: did, on 28 Apr 95, wrongfully use marijuana.
	Findings:  to Charge I and specification thereunder, guilty.  
To Additional Charge and specification thereunder, guilty.  
	Sentence:  Confinement for 75 days, reduction to E-1, and a bad conduct discharge.
	CA 950929:  Sentence approved and ordered executed except for the BCD.
	
950621:	To confinement, sentence of SPCM.

950819:	From confinement, to duty.

960216:	NMCCMR:  Affirmed findings and sentence.

960430:	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 960430 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.  Normally, to permit relief, an error or injustice must have existed during the period of enlistment in question.  No such error or injustice occurred during the applicant’s enlistment.  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 relief, 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 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