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

 ex-PVT, USMC
Docket No. MD02-00862

Applicant’s Request

The application for discharge review, received 020530, 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 did not list any representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 030228. 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.  I request that my discharge be upgraded because since I have been discharged I have been a productive individual in the work force.  I have not had any other problems since my discharge.  I chose to go before the Special Court Marshal because I believed that I had not committed any wrong doing.  If I had chosen to attend a Battalion Hearing I would of been allowed to return to my unit.  I was instructed after my Court Marshal that if I had decided to plead guilty I would have either received a General Court Martial or received restriction with loss of paygrade.  My counsel told me that I should go ahead and go before the Special Court Marshall.  I am now a college student pursuing a degree in Mathmatics and Chemistry.  I have not committed any wrong doing since my discharge on appellate leave.

Documentation

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

None

PART II - SUMMARY OF SERVICE

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

	Active:   USMC		None
	Inactive: USMCR(J)		920203 - 921018	COG

Period of Service Under Review:

Date of Enlistment:  921019		Date of Discharge:  990823

Length of Service (years, months, days):

	Active:    06  06  28
	Inactive:  None

Age at Entry:  18			Years Contracted:  6 

Education Level:  12			AFQT:  74

Highest Rank:  LCpl

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  4.5 (9)			Conduct:  4.1 (9)

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM, SSDR, Meritorious Mast, Rifle Sharpshooter Badge, Pistol Sharpshooter Badge, GCM 

Days of Unauthorized Absence:  None 

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:

940331:	NJP for violation of UCMJ, Article 134: Did on or about 940115, make and utter to MWR a certain check, in words and figures as follows, to wit: SNM did between 940115 to 940315 write several worthless checks to MWR aboard Camp Pendleton with a total of $1,479.41, and did thereafter dishonorably fail to maintain sufficient funds.
	Award:  Forfeiture of $466.00 pay per month for 2 months (suspended for 6 months), restriction and extra duty for 45 days (21 days restriction and 21 days extra duty suspended for 6 months), reduction to E-2.  No indication of appeal in the record.

960207:	Special Court-Martial.
	Charge I:  violation of the UCMJ, Article 112a: Wrongful use of amphetamine/methamphetamine on or between 950528 and 950602.
	Findings:  to Charge I and specification 1 thereunder, guilty.
	Sentence:  Confinement for 4 months, forfeiture of $583.00 pay per months for 6 months, reduction to E-1, and a bad conduct discharge.
	CA 960619:  Sentence approved and ordered executed.
	
960207:	Applicant to confinement as specified in sentence of SPCM.

960513:	Applicant from confinement to duty.

960628:	Applicant to appellate leave.

961206:	Naval Clemency & Parole Board denied clemency and directed that VA treatment be made to the Applicant.

961224:	Applicant declines offer of 30-day in-patient treatment for substance abuse at a VA hospital prior to discharge.

971031:	U.S. Navy-Marine Corps Court of Criminal Appeals affirms the findings and sentence of the Special Court-Martial

981117:	Applicant petitioned the U.S. Court of Appeals for the Armed Forces.

990511:	USCAAF affirmed decision of the NMCCCA.

990823:	Navy and Marine Corps Appellate Leave Activity issues Special Court-Martial Supplemental Order stating that, Article 71(c), UCMJ, having been complied with, the Bad Conduct discharge is ordered executed.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 990823 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:  In response to the Applicant's issue concerning the propriety of his appearance before a Special Court-Martial, the NDRB presumed that the relevant and material details stated in a court-martial specification are established facts.  With respect to a discharge adjudged by a court-martial case tried under the Uniform Code of Military Justice, the action of the NDRB is restricted to upgrades based upon clemency only (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 such clemency.  The service records that the Board reviewed showed no mitigating or extenuating factors sufficient to offset the seriousness of the offenses for which the discharge was awarded.  Relief is therefore denied.

In response to the Applicant's issue of post-service conduct, the following is provided for his edification.  There is no law or regulation that provides for an unfavorable discharge to be upgraded based solely on the passage of time or good conduct in the civilian life subsequent to leaving the service.  However, the NDRB is authorized to consider post-service factors in the recharacterization of a discharge.  Outstanding post-service conduct, 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 may be considered.  Verifiable proof of post-service accomplishments must be provided in order for the Applicant to claim post-service conduct and behavior as a reason to upgrade a less than honorable discharge.  Evidence of continuing educational pursuits, an 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 documents that may be provided to receive consideration for relief based on post-service conduct.  At this time, the Applicant has not provided such documentation for the Board to consider an upgrade.

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 112a, Wrongful use, possession, etc. of controlled substance.

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