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

 ex-PVT, USMC
Docket No. MD02-00606

Applicant’s Request

The application for discharge review, received 020402, requested that the characterization of service on the discharge be changed to general/under honorable conditions or entry level separation or uncharacterized and the reason for the discharge be changed to (most appropriate).  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 030106.  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 and narrative reason 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.  Dear Naval Council of Personnel Board,                               2002/03/20

It is my humble request that I submit the following evidence in hope of amending my original type of military discharge.  It is my desire to re-enlist into the reserves and according to the local Army recruiter; I may only do so if my discharge is changed to either General/under honorable conditions or Entry Level Separation.  As this process is very foreign to me and I am unsure to the extent of details the board requires, I shall summarize the details of the incident in a frank nature leading to my court-martial.

When I was twenty years old I participated in a fight in the local community of Rota, Spain.  There were a number of us whom foolishly engaged in a brawl outside of a club that resulted in assault charges and a special court-martial.  I was arrested and officially charged with assault under the Uniform-in Code of Military Justice.  I was then released with base restriction pending my arraignment.  Due to the fact that some of the marines required medical attention (stitches and released), my commanding officer thought it was in the best interest of his company that I be discharged.  I was offered a pre-trial agreement of 90 days in the brig and a BCD.  I accepted the deal and was released and discharged from Camp Pendleton, California.

It has been over ten years since that incident and I was fortunate that none of the participants had any permanent injuries.  Ten years of reflection about such a life altering event has led me to request said change.  I have been fortunate that this incident has not impeded my professional opportunities as an educator, although I certainly wish I understood the magnitude of that poor choice back then because I have felt the limitations in other professional endeavors, such as re-enlistment.

I am hopeful the enclosed materials, including my accomplishments while serving, indicate a significant level of personal and professional growth.  I currently work in the helping profession as an educator in a juvenile correctional facility.  I earned my B.A. in 1995, my M.A. in 2000 and am presently wrapping up my Ed.  S. degree this year.  Nothing can take away the pain that I caused back then other than the solace hope that that incident did not interfere with the future of those other marines.

I believe over the years I have gained the trust and confidence of my profession and the community by showing respect to self and others by not having ever engaged in such another incident.  I respectfully plead the board to grant me another chance to prove to the military community that my service would be honorable and in line with the overall mission of the service.

Thank you for your attention in this matter
Respectfully Submitted, 
Signed by Applicant 

Documentation

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

Copy of DD Form 214
Copy of Certificate of Completion (Terrorism Counteraction for Marines)
Copy of Certificate of Completion (Spelling)
Copy of Certificate of Completion (Personal Finance)
Copy of Certificate of Completion (MCSFBNLant course)
Copy of Certificate for Exceptional Assistance in the Recruiting Field
Copies of Certificate of Completion (MOS 0311 Rifleman) (2)
Copy of Certificate of Acceptance (Required mental, moral and physical examination)
Copy of Military Occupational Specialties Listing
Copy of LCpl Appointee Certificate
Copy of Certificate of Physical Excellence
Résumé (4 pages)
Copy of Provisional Teacher License State of Colorado
Copy of Bachelor of Science Degree from Metropolitan State College of Denver
Copy of Master of Arts Degree (Special Education) from University of Northern Colorado
Transcript from University of Colorado
Copy of Certificate of Appreciation (Teen Quest/Reflections School)
Copies of Letters of Recommendation (7)
Transcript from Metropolitan State College of Denver (2 pages)
Reference Letter from Applicant's Wife
Reference Letter from Applicant's 13 years old stepson
Reference Letter from Applicant's Mother
Reference Letter from Applicant's Father 

PART II - SUMMARY OF SERVICE

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

	Active:   USMC		None
	Inactive: USMCR(J)		870618 - 880531	COG

Period of Service Under Review:

Date of Enlistment:  880601		Date of Discharge:  921207

Length of Service (years, months, days):

	Active:    04  03  28 (Lost time not included)
	Inactive:  None

Age at Entry:  18			Years Contracted:  4 

Education Level:  12			AFQT:  40

Highest Rank:  LCpl

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  3.9 (9)			Conduct:  3.7 (9)

Military Decorations:  None

Unit/Campaign/Service Awards:  Rifle Expert Badge, Pistol Sharpshooter Badge, LOA, OSR(2ND), NDSM 

Days of Unauthorized Absence:  1

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:

890404:	To confinement. 

890406:	From confinement.

890519:	Summary Court-Martial.
	Charge I:  violation of the UCMJ, Article 86 (2 specifications).
	Specification 1: Absence from place of duty without authorization from 0600-2045, 890403; Specification 2: Absence from appointed place of duty, to wit: 0600 formation, 890403.  Charge II: violation of the UCMJ, Article 90: Willfully disobeyed a lawful command from Capt M_ F. H_, USMC, to draw his weapon and assume duty as a sentry on post, on 890404.  Charge III: violation of the UCMJ, Article 92: Derelict in the performance of his duties as a sentry on post, on 890420.
Finding:  to Charge I and the specifications 1 and 2 thereunder, guilty.  To Charge II and specification 1 thereunder, guilty.  To Charge III and specification 1 thereunder, guilty. 
	Sentence:  CHL for 1 month, forfeiture of $466.00 pay per month for 1 month, reduced to E-1.
	CA action 890531:  Sentence approved and ordered executed.

890601:	To confinement.

890611:	From confinement.
  
891124:	NJP for violation of UCMJ, Article 92 (3 specs):
Specification 1: Failed to obey CoO P5510.7L, par. 2006.2b by wrongfully possessing a tape recorder on Post #2; Specification 2: Failed to obey CoO P5510.7L, par. 3002.2c(1) by wrongfully magnetic media within a restricted area; Specification 3: Derelict in the performance of his duties as a sentry on post, on 891025.
Awarded forfeiture of $163.00 pay per month for 1 month, restriction and 
extra duties for 14 days.  Not appealed.

891127:	Counseled for deficiencies in performance and conduct.  Frequent involvement with military authorities which has resulted in one Summary Court-Martial and one Article 15, NJP within a six month period.  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

900530:	Counseled concerning unauthorized absence from duty on 900510.

901101:	Counseled for deficiencies in performance and conduct.  [Conduct as a Marine, specifically using racial slurs toward fellow Marines.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

910206:	Special Court-Martial [Trial dates 6 & 8 February 1991].
	Charge I:  violation of the UCMJ, Article 128 (4 Specifications):
	Specification 1: Assault with means likely to produce death or grievous bodily harm on 901201; Specification 2: Assault consummated by battery upon LCpl S_ W. S_, USMC, on 901201; Specification 3: Assault consummated by battery upon LCpl M_ B. K_, USMC, on 901201; Specification 4: Assault consummated by battery upon LCpl D_ O. D_, USMC, on 901201.
	Findings:  to Charge I and specifications 1 through 4 thereunder, guilty.  
	Sentence:  Confinement for 75 days, forfeiture of $400.00 pay per month for 2 months, reduction to E-1, and a bad conduct discharge.
	CA 910408:  Sentence approved and, except for the part of the sentence extending to a bad conduct discharge, will be executed.  However, the execution of that part of the sentence to confinement in excess of sixty (60) days must be suspended for a period of twelve (12) months from the date of trial, at which time, unless sooner vacated, the suspended portion should be remitted without further action.

910731:	NMCCMR:  Affirmed findings and sentence.

920709:	NC&PB denied clemency and restoration.

920922:	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 921207 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.  No other narrative reason more clearly describes the circumstances surrounding the Applicant’s processing for administrative separation.  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 inequity must have existed during the period of enlistment in question.  No such error or inequity 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.  Evidence of continuing educational pursuits, employment record, documentation of community service, certification of non-involvement with civil authorities and credible evidence of a substance free lifestyle, are examples of verifiable documentation that may be provided to receive consideration for relief, based on post-service conduct.  While the Applicant’s post-service activities have been commendable, he  did not provide sufficient documentation to warrant an upgrade to his discharge.  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 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; Article 92, failure to obey a lawful general order; Article 128, assault.

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