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

 ex-PVT, USMC
Docket No. MD02-00672

Applicant’s Request

The application for discharge review, received 020404, 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 030131.  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.  SNM's ability to serve was impaired because of marital problems.

2.  Use of alcohol impaired SNM's ability to serve.

3.  SNM's ability to serve was impaired because of youth, immaturity, alcohol, and financial problems.

4.  Record of promotions showed SNM was generally a good service member.

5.  SNM tried to serve and wanted to, but just could not.

6.  SNM's Record of UA/Special Court Martial indicate only minor or isolated offenses.

7.  SNM's discharge was based on several offenses, but they were mostly only minor offenses.

8.  The punishment SNM received was too harsh - it was much worse than most people got for the same offense. 

Documentation

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

Listing of Issues
Letter from Applicant
Statement of Facts (5 pages)
Promotion Certificate (LCpl)
Canisius College Degree (Associates degree)
Inmate Program Associate Certificate
Inmate Program Associate Certificate
Certificate of Appreciation (Volunteer service in Alternatives to Violence Project)
Certificate of Appreciation (Outreach Cell-Study)
Apprenticeship Training Certificate (Teachers Aide) New York State Dept. of Labor
Commendable Behavior Report from State of New York, Dept. of Correctional Service
Grade Report/College grades from Daemen College
Character Reference Letter from R_ S_, College Coordinator
Character Reference Letter from R_ H_, College Director
Character Reference Letter from D_ Z_, Associate Director
Character Reference Letter from Sister M_ F. W_, Academic Advisor
Character Reference Letter from P_ B_, College Coordinator
Certificate of Completion Alternatives to Violence Project (Basic) 
Certificate of Completion Alternatives to Violence Project (Advanced)
Certificate of Completion Alternatives to Violence Project (Facilitator Training)
Certificate of Completion Alternatives to Violence Project (Certificate of Appreciation as workshop leader) 
Certificate of Completion Alternatives to Violence Project (Full Facilitator)
Consortium Newsletter Article (Dr. Food)
Pen and Ink article (Spanish Translator)
Inmate Progress Report
Pen and Ink article (Poem: The Mask)
Pen and Ink article (Poem: Structured Love)
Character Reference Letter from S_ A_, Esq
Community Petition
Certification of Participation (56 weeks) Veterans Self-help Group
V.V.A. Between the Lines article (Sept 11th Fundraiser)
DD Form 214
Certificate of Military Service

PART II - SUMMARY OF SERVICE

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

	Active:   USMC		None
	Inactive: USMCR(J)		860730 - 870714	COG

Period of Service Under Review:

Date of Enlistment:  870715		Date of Discharge:  930428

Length of Service (years, months, days):

	Active:    02  02  14 (Does not include lost time)
	Inactive:  None

Age at Entry:  18			Years Contracted:  4 

Education Level:  12			AFQT:  52

Highest Rank:  LCpl

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  3.4 (10)			Conduct:  3.0 (10)

Military Decorations:  None

Unit/Campaign/Service Awards:  Rifle Expert Badge 

Days of Unauthorized Absence:  22 

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:

890809:	Special Court-Martial.
	Charge I:  violation of the UCMJ, Article 86: Did on 890518, without authority, absent himself from his organization, to wit: 1st Battalion, 3rd Marines, 1st Marine Expeditionary Brigade, FMF, and did remain so absent until 890609.
	Charge II:  violation of the UCMJ, Article 107: Did on 890419, with intent to deceive sign two official documents, to wit: two requests for issue of Armed Forces Identification Cards, which documents were false in that the date of birth appearing on the said request forms and the signature of CW0-3 J_ S. H_, USMC, as the Issuing Officer, affixed to the said request forms were false, and were then known by the said LCpl V_ to be so false.
	Findings:  to Charge I and specification 1 thereunder, guilty.  To Charge II and specification thereunder, guilty.  
	Sentence:  Confinement for 60 days, forfeiture of $400.00 pay per month for two months, reduction to E-1, and a bad conduct discharge.
	CA 891024:  Sentence approved and ordered executed except for the BCD.
	
890809:	To confinement, Sentence of SPCM.

890815:	Applicant waived clemency review.

890927:	From confinement, to duty.

891208:	To appellate leave.

900508:	NMCCMR:  Affirmed findings and sentence.

900824:	SSPCMO:  Article 71c, UCMJ, having been complied with, bad conduct discharge ordered executed.

930422:	Separation effective 930428.  Action caused by non-receipt of the authority to separate until on or about this date.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 930428 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 1-8.  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 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 107, false official statements.

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