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

 ex-PVT, USMC
Docket No. MD02-00426

Applicant’s Request

The application for discharge review, received 020221, 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 Disabled American Veterans as his representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 021029.  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.  In 1995, I was receiving an Other Than Honorable Discharge the command told me to stop seeing my girlfriend and I refused.  The command said they will do everything in their power to send me to the Brig.  So I left the unit unauthorized and returned to Oklahoma.  If you would, please consider upgrading my discharge so I can gain employment with a Security Company to further my life and succeed. Any assistance would be greatly appreciated.

2.  (DAV Issue)  After a review of the Former Service Members (FSM) DD Form 293 Application for the Naval Discharge Review Board or Dismissal from the Armed Forces of the United States and all of the evidence assembled for review, we continue to support the contentions as set forth by the Applicant, in his request that he be given the opportunity to upgrade his Misconduct Discharge (Under Other Than Honorable Conditions) to General (Under Honorable Conditions) Discharge.

The (FSM) in the course of just over (1) year received (4) four Non-Judicial Punishment which included long periods of AWOL in which he pled guilty to during his Court Martial Trial.  The (FSM) received 75 days confinement in the Naval Brig.

The (FSM) desires now to have his Discharge up-graded due to the fact that he feels now is able to handle his behavior and the problems that lead to Misconduct Discharge from the Marine Corps.  The (FSM) now claims he knows now how to effectively handle his behavior and attitude that subsequently lead to his dismissal from the Marine Corp a career he loved and took pride in.  The (FSM) now understands the severe consequents and extreme personal effects of having and Misconduct OTH Discharge from the military had on his civilian life from having a Negative Discharge from the military service.  The (FSM) past behaviors he exhibited that lead to his discharge he now feels can be personally attributed to immaturely and inability to handle both the stressful military and civilian life that lead him to act out in inappropriate ways on active duty.  The (FSM) knows now that he should have enlisted other avenues to correct his negative behaviors and actions, but since he did not act in a positive manner, he now takes full responsibility for his negative actions and early separation and Misconduct Discharge from Marine Corp Service a major mistake in his life that he regrets each and every day…

The (FSM) now respectfully requests an equitable standard be applied as well as equity in treatment in seeking the board's approval to afford him the opportunity to receive and an up-grade of his Misconduct Discharge to a General (Under Other Than Honorable) Discharge.  The (FSM) sincerely hopes that by respectfully requesting and being granted an Up-Grade of his Discharge and the citing the reasons for his past violations of Marine Corp Rules and policy and his subsequent dismissal for his numerous violations of UCMJ Article's of punishment from the US Marine Corp Naval Services.

The (FSM) feels his military accomplishments of service are a matter of Supreme Honor and Respect he will cherish throughout his lifetime.  The (FSM) also states he had always tried to achieve Honor and Respect during his almost entire term of enlistment of military duty in the Marine Corp, but just failed on these cited incidents.  We respectfully request that the (FSM) be given complete and duly consideration by the board.  We also respectfully request that the board consider each reasonable explanation submitted by the (FSM) who now wishes to seek to correct the mistakes he make and the negative behavior he exhibited and that occurred to him in fulfilling his military duty in the United States Marine Corp.

We ask for the Boards careful and sympathetic consideration of all the evidence of record used in rendering a fair and impartial decision.  These issues do not supersede any issues previously submitted by the Applicant.

Documentation

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

Copy of Transcript from College of the Desert (2 pages)
Copy of Certificate of Achievement from Vance International Companies (Tactical Security Officer Course)
Letter of recommendation from L_ E_ 
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)		920625 - 930606	COG

Period of Service Under Review:

Date of Enlistment:  930607		Date of Discharge:  960925

Length of Service (years, months, days):

	Active:    03  03  19
	Inactive:  None

Age at Entry:  17			Years Contracted:  4 

Education Level:  12			AFQT:  53

Highest Rank:  PFC

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  4.2 (6)			Conduct:  3.8 (6)

Military Decorations:  None

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

Days of Unauthorized Absence:  83 

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:

940216:	NJP for violation of UCMJ, Article 134: At MCAGCC, 29 Palms, CA was on or about 1800, 940112 apprehended by PMO for shoplifting, to wit: Golf Company, 2nd Bn, 7TH Marines.
	Award:  Forfeiture of $456.00 pay per month for 1 month, extra duty for 30 days.  Not appealed.

940810:	NJP for violation of UCMJ, Article 91: Disrespectful in language toward Cpl C_ a non-commissioned officer, then known by the said LCpl to be a non-commissioned officer, who was in the execution of his office, by saying to him "Fuck You" or words to that effect.
	Award:  Forfeiture of $242.00 pay per month for 1 month, restriction and extra duty for 14 days.  Not appealed.

940818:	Counseled for deficiencies in performance and conduct.  [Military and personal conduct and judgement].  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

950110:	NJP for violation of UCMJ, Article 123a: Did on or about 941020, with intent to defraud, utter a check to the US Treasury in the amount of $350.00, without having sufficient funds in his account; violation of UCMJ, Article 123a: Did on or about 941030, with intent to defraud, utter a check to the US Treasury in the amount of $280.24, without having sufficient funds in his account.
Award:  Forfeiture of $232.00 pay per month for 1 month (suspended for 6 months), restriction and extra duties for 14 days.  Not appealed.

950117:	Counseled for deficiencies in performance and conduct.  [Inattention to personal, professional and financial responsibilities: to wit: the uttering of bad checks, lack of continuous spousal support during BN UDP and the loss of government property.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

950309:	NJP imposed and suspended on 950110 for a period of 6 months is hereby vacated and the punishment ordered executed.

950309:	NJP for violation of UCMJ, Article 86: Did on or about 0500, 950301, without authority absent himself from his formation which he was required to be, to wit: Company formation passed by SSgt M_ K.
Award:  Forfeiture of $232.00 pay per month for 1 month, restriction and extra duties for 14 days.  Not appealed.

950313:	NJP for violation of UCMJ, Article 134: (Cohabitation, wrongful): In that T_ S., did, at 29 Palms CA, from about 950210, to about 950308, wrongfully cohabit with Mrs. L_, a woman not his wife; violation of UCMJ, Article 107: In that T_ S., did, at 29 Palms CA, on or about 1000, 950308 with intent to deceive, an official statement, to wit: LCpl S_ stated to Capt B_ that he was living out of town with LCpl W_ and LCpl C_, an official statement which was false; violation of UCMJ, Article 92: In that LCpl S_, having knowledge of a lawful order issued by 1STSgt R_ to report to the DNCO by 2100 with all his gear from out of town, and order which it was his duty to obey, did at 29 Palms CA, on or about 2100, 950308, fail to report to the DNCO at the prescribed time.
Award:  Forfeiture of $478.00 pay per month for 2 months, restriction and extra duties for 45 days, reduction to E-2.  Not appealed.

950406:	Counseled for deficiencies in performance and conduct.  [Commanding Officer’s intention to administratively discharge Applicant, due to a continuous pattern of misconduct.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

950410:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.

950410:	Applicant advised of his rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights.

950410:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.  The factual basis for this recommendation was a pattern of misconduct.  

950504:	NJP for violation of UCMJ, Article 86: Did on or about 0450, 950427, without authority absent himself from his place of duty at which he was required to be, and did remain so absent until on or about 0515, 950427.
Award:  Forfeiture of $223.00 pay per month for 1 month, restriction and extra duties for 14 days.  Not appealed.

950510:	SJA review determined the case sufficient in law and fact.

950515:	GCMCA [Commander, 1st Marine Division (Rein), FMF] directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.

950611:	Applicant declared a deserter.

950803:	From UA (AWOL) at 1700 950803 when Applicant surrendered.

950808:	Pre-trial confinement from 950803 to 950920 (57 days), credited against the confinement adjudged.
 
950929:	Special Court-Martial
	Charge I:  violation of the UCMJ, Article 86:
	Specification 1: On or about 950511 without authority, absent himself from his organization until 950803 (83 days/S).
	Findings:  to Charge I and Specification 1 thereunder, guilty.
	Sentence:  Confinement for 75 days, forfeiture of $586.00 pay per month for 3 months, reduction to E-1, and a bad conduct discharge.
	CA 951122:  Sentence approved and ordered executed except for the BCD.
	
951005:	Waiver of clemency review.

951010:	To appellate leave.

960703:	NMCCMR:  Affirmed findings and sentence.

960925:	SSPCMO:  Article 71c, UCMJ, having been complied with, bad conduct discharge will be executed.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 960925 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).

Issues 1 and 2.  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.  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, to receive benefits or enhance employment opportunities, or for good conduct in civilian life, subsequent to leaving the service.  Relief not warranted.

The Applicant 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.  Representation at a personal appearance hearing is recommended but not required.

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, Article 91, disrespectful to a NCO, Article 92, failure to obey a lawful general order, Article 134, cohabitation.

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