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

 ex-PVT, USMC
Docket No. MD02-00152

Applicant’s Request

The application for discharge review, received 011113, requested that the characterization of service on the discharge be changed to honorable.  The applicant requested a documentary record discharge review.  The applicant listed the Lake County Veteran Service Office as his representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 020701.  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, as submitted

1.  The veteran respectfully requests that the Board, after review of the file and all supporting documents submitted herewith, change the character of his discharge from Bad Conduct to Honorable.  In the alternative, the veteran respectfully requests his discharge be changed to Under Honorable Conditions. The veteran's military record will indicate that a young man of 18 began a respectable tour of duty as a United States Marine.  He earned a Sea Service Deployment Ribbon with two service stars. It was unfortunate that while the young Marine was deployed to Saudia Arabia his mother became ill and was diagnosed with cancer.  He requested leave to return to his mother's bedside, but was denied.  When he finally ended his deployment he immediately left for home on leave.  Only then did he learn that his mother's condition was terminal.  He contacted unit @ Camp Lejeune to request additional leave, but was denied.  The mental and emotional trauma was so significant and severe, that after numerous attempts to either extend leave or even be transferred to a local unit TDY, he told his unit he could not return and leave his mother alone and unattended.  His brothers and sister could not help for a variety of reasons:  Two had 5 and 6 children respectively, two were in the service and another was a drug addict who couldn't even help himself.  I was a good Marine.  This was my ONLY incident of improper conduct.  The "BCD" was NOT to be applied per "Action," attached.

Documentation

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

Copy of DD Form 214
Copy of SPCM Convening Authority Action
Copy of Mother Death Certificate 

PART II - SUMMARY OF SERVICE

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

	Active:   USMC		None
	Inactive: USMCR(J)		871214 -880817	COG

Period of Service Under Review:

Date of Enlistment:  880818		Date of Discharge:  930508

Length of Service (years, months, days):

	Active:    02  09  10
	Inactive:  None

Age at Entry:  18			Years Contracted:  4 

Education Level:  12			AFQT:  35

Highest Rank:  LCpl

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  4.3 (5)			Conduct:  4.2 (5)

Military Decorations:  None

Unit/Campaign/Service Awards:  Rifle Marksman Badge, SSDR(2), NDSM,SASM (4), GCM 

Days of Unauthorized Absence:  92 

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:

910626:	Applicant declared a deserter on, 910626 having been an unauthorized absentee since 1201, 910527 from HQCO 8THMAR 2DMARDIV FMF CAMLEJ.

910828:	Pre-Trial confinement from 910828 to 911023.

911024:	Special Court-Martial.
	Charge I:  violation of the UCMJ, Article 86: Specification: Did at Camp Lejeune, North Carolina, on or about 910528 without authority, absent himself from his unit, and did remain so absent until he was apprehended on or about 910828.
	Findings:  to Charge I and specification 1 thereunder, guilty.  
	Sentence:  Confinement for 60 days, reduction to E-1, and a bad conduct discharge.
	CA 920107:  Sentence approved and, with the exception of the BCD, will be executed, but that part of the sentence extending to all confinement in excess of 50 days is suspended for a period of 12 months form the date of trial, at which time unless sooner vacated, the suspended portion of the sentence shall be remitted without further action.

911204:	To appellate leave.

920924:	NC&PB denied clemency and restoration.

921113:	NMCCMR:  Affirmed findings and sentence.

930508:	SSPCMO:  Article 71c, UCMJ, having been complied with, Bad Conduct discharge ordered executed.

APPLICANT WAS NOT AVAILABLE TO SIGN DD FORM 214.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 930508 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.  There is no indication in the official record that the applicant was unfairly denied leave. 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 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