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

ex-Pvt, USMC
Docket No. MD02-00702

Applicant’s Request

The application for discharge review was received on 20020422.  The Applicant requests the characterization of service received at the time of discharge be changed to general/under honorable conditions.  The Applicant requests 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 20040212.  After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, no impropriety or inequity in the characterization of the Applicant’s service was discovered by the NDRB.  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 stated

Applicant’s issues, as stated on the application:

“1.  My discharge was inequitable because it was based on one isolated incident, with no other infractions before or after the incident.”

Documentation

In addition to the service record (there was no DD FORM 214), the following additional documentation, submitted by the Applicant, was considered:

Certificate of Completion (Marine Rifleman Combat Skills)
Commanding General’s Voluntary Leave Awaiting Appellate Review Letter dated August 4, 1992 (2 pages)

PART II - SUMMARY OF SERVICE

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

	Active:   USMC		None
	Inactive: USMCR(J)		890629 - 890827	COG

Period of Service Under Review:

Date of Enlistment:  890828		Date of Discharge:  930603

Length of Service (years, months, days):

	Active:    03  09  05
	Inactive:  None

Age at Entry:  19			Years Contracted:  4 

Education Level:  12			AFQT:  51

Highest Rank:  LCpl

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  4.3 (6)			Conduct:  4.3 (6)

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM, SASM, SSDR 

Days of Unauthorized Absence:  None 

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:

900226:	NJP for violation of UCMJ, Article 86: At AdminCo, SOI, at 0001, 900218 go from appointed place of duty, to wit: Barracks #738.
	Awarded forfeiture of $185.00 pay per month for 1 month.  Not appealed.

900425:	NJP for violation of UCMJ, Article 92: Violation of a lawful order by drinking alcohol under the legal age at 0145, 900421.
Awarded forfeiture of $100.00 ($25.00 suspended for 3 months), restriction and extra duties for 7 days.  Not appealed.

910919:	Counseled for deficiencies in performance and conduct.  [Conduct while on liberty; i.e., Urinating in public.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

911003:	Counseled for deficiencies in performance and conduct.  [Frequent involvement with military/civilian authorities and minor incidents.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

920401:	Special Court-Martial (Trial dates 18 March and 1 April 1992).
	Charge I:  violation of the UCMJ, Article 112a: Did, at an unknown location, between about 911227 and 920109, wrongfully use marijuana.
	Charge II:  violation of the UCMJ, Article 128: Did, at Camp Lejeune, North Carolina, on or about 920204, assault Cpl T_ H_, Jr., U.S. Marine Corps, who then was and was known by the accused to be a noncommissioned officer of the United States Marine Corps, by hitting the said Corporal H_ in the face with a closed fist.
	Findings:  to Charge I and II and specifications thereunder, guilty.  
	Sentence:  Fine of $500.00 pay per month for 2 months, confinement for 45 days, reduction to E-1, and a bad conduct discharge.
	CA 920701:  Sentence approved and ordered executed except for the BCD.
	
920401:	To confinement, Sentence of SPCM.

920508:	From confinement, to duty.

920805:	To appellate leave.

921001:	NC&PB denied clemency and restoration.

921112:	NMCCMR:  Affirmed findings and sentence.

930603:	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 19930603 with a bad conduct discharge which was the sentence adjudged by a properly convened special court-martial.  That sentence was subsequently approved by both the convening and appellate review authorities (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 absent of any mitigating or extenuating factors sufficient to offset the seriousness of the offenses for which the discharge was awarded.  Relief denied.

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 112a, illegal use of drugs; and 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