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

 ex-PVT, USMC
Docket No. MD02-00571

Applicant’s Request

The application for discharge review, received 020511, 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 021217.  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.  My discharge was unjust to me.  I was discharged BCD do to charges of Article 86 + UA.  I told the judge that I was stranded with a rental car on a 96-weekend leave.  I called my unit and requested advance pay so I could fix the car and return back to base, and they told me no.  For the time I felt my unit and the corps banded me, I grew angry.  I called the rental (car) and told them were the car was and they came and towed the car back and fixed it.  They also charged me almost $1,000.00 for towing and fixing it.  When I returned to Lejuene I decided not to report in.  I felt the corp abanded me so figured why should I go back.  So I didn't for about 3 to 4 months.  Till this day I have regretted doing what I did.  To this day I wished I'd just stayed on base and didn't go anywhere, I might still be in the corps to this day. I know what I did was wrong, but I feel I wasn't the only one.

Documentation

In addition to the record of trial (the Naval Discharge Review Board was unable to get the service record), the following additional documentation, submitted by the Applicant, was considered:

Copy of DD Form 214
Service Related Documents (16)

PART II - SUMMARY OF SERVICE

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

	Active:   USMC		None
	Inactive: USMCR(J)		920110 - 920324	COG

Period of Service Under Review:

Date of Enlistment:  920325		Date of Discharge:  951005

Length of Service (years, months, days):

	Active:    03  06  11 
	Inactive:  None

Age at Entry:  19			Years Contracted:  4

Education Level:  12			AFQT:  Unknown

Highest Rank:  LCpl

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  4.3 (3)			Conduct:  4.3 (3)

Military Decorations:  None

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

Days of Unauthorized Absence:  122 

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:

930528:	Assigned to weight control program.

940415:	Counseled for deficiencies in performance and conduct.  [Uttering and passing worthless checks.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

940506:	Counseled for deficiencies in performance and conduct.  [Unsatisfactory progress since being assigned to the weight control program.  Initially assigned to the program on 930528, weight was 205 lbs with a body fat percentage of 25%.  Currently on a 6 month extension and present weight is 213 lbs.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

940512:	Counseled for deficiencies in performance and conduct.  [Frequent involvement with military authorities.  Specifically uttering and passing worthless checks (11) for a total amount of $1,406.20 to MWR facilities aboard MCB, CLNC.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

940512:	NJP for violation of UCMJ, Article 134: Did on or about 940401 to 940430, utter worthless checks to MWR facilities in the amount of $1,396.20.
	Award:  Correctional Custody Unit for 30 days, forfeiture of $466.00 pay per month for 2 months (suspended for 6 months), reduction to E-2.  No indication of appeal in the record.

940616:	Applicant declared a deserter on 940616 having been an unauthorized absentee since 1200, 940515 from 3dBn, 10thMar, 2dMarDiv, MarForLant.

940915:	Applicant surrendered 1400, 940915.  To pretrial confinement.

941031:	Special Court-Martial.
	Charge I:  violation of the UCMJ, Article 86: Did, at Marine Corps Base, Camp Lejeune, North Carolina, on or about 940527, without authority, absent himself from his unit, and did remain so absent until on or about 940915.
	Findings:  to Charge I and specification 1 thereunder, guilty.
	Sentence:  Confinement for 90 days, forfeiture of $500.00 pay per month for 3 months, reduction to E-1, and a bad conduct discharge.
	CA 950201:  Sentence is approved and, except for the bad conduct discharge, will be executed, but the execution of that part of the sentence extending to confinement in excess of 60 days is suspended for a period of 12 months from the date of trial, at which time, unless the suspension is sooner vacated, the suspended part of the sentence will be remitted without further action.
	
941031:	Applicant waived clemency review.

941031:	To confinement.

941103:	From confinement.

941201:	To appellate leave.

950607:	NMCCMR:  Affirmed findings and sentence.

951005:	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 951005 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.  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 inequity must have existed during the period of enlistment in question.  No such error or inequity is evident 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.  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 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