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

 ex-PVT, USMC
Docket No. MD02-00889

Applicant’s Request

The application for discharge review, received 020607, requested that the characterization of service on the discharge be changed to honorable or general (under honorable condi-tions).  The applicant requested a personal appearance hearing discharge review before a traveling panel closest to Lawton, OK.  The applicant listed American Legion as his representative on the DD Form 293.  In the acknowledgement letter to the Applicant, he was informed that the Naval Discharge Review Board (NDRB) does not travel, all hearings are held in the Washington, DC Area.  The Applicant was also advised that the Board first conducts a documentary review prior to any personal appearance hearing. 

Decision

A documentary discharge review was conducted in Washington, D.C. on 030410.  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.  (Equity Issue)  Pursuant to 10 USC 874 (b) (UCMJ, Article 74) and in accordance with SECNAVINST 5420.174C, enclosure (1), paragraphs 2.24 and 9.3, this former member requests the Board’s clemency relief with up-grade of his characterization of service to under honorable conditions on the basis of his post-service conduct.

Documentation

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

Letter from J_ A. B_, Attorney at Law dated April 18, 2002
Employment Recommendation Letter dated May 2, 2002 
Character Reference Letter dated August 5, 2001
Copies of DD Form 214 (2)
Letter from Applicant dated May 5, 2000 (2 pages)

PART II - SUMMARY OF SERVICE

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

	Active:   USMC		None
	Inactive: USMCR(J)		970829 - 971112	COG

Period of Service Under Review:

Date of Enlistment:  971213		Date of Discharge:  001129

Length of Service (years, months, days):

	Active:    02  09  11
	Inactive:  None

Age at Entry:  18			Years Contracted:  4 

Education Level:  12			AFQT:  48

Highest Rank:  LCpl

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  3.9 (1)			Conduct:  3.8 (1) 

Military Decorations:  None

Unit/Campaign/Service Awards:  Rifle Marksman Badge 

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:

981207:	Counseled for deficiencies in performance and conduct (Violation of Article 86, Unauthorized Absence; on 981113, the Applicant was UA from his appointed place of duty, specifically, 0545 PT formation at HP-513 and 0700 formation at FC-230 for schedule pool time).  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

981207:	Counseled for deficiencies in performance and conduct (Infractions of the UCMJ).  Disciplinary and discharge warning issued.

990722:	Special Court-Martial.
	Charge I:  violation of the UCMJ Article 91 (5 Specifications):
	Specification 1: Did on or about 990214, assault Sergeant J_ E. E_, U.S. Marine Corps, a noncommissioned officer, then known by the said Lance Corporal [Applicant] to be a superior noncommissioned officer who then was in the execution of his office, by pushing him with his hands and hitting him in the shoulder with his fist.  Specification 2: Did on or about 990214, was disrespectful in language and deportment toward Sergeant J_ E. E_, U.S. Marine Corps, a non-commissioned officer then known by the said Lance Corporal [Applicant] to be a superior noncommissioned officer who then was in the execution of his office, by saying to him, "Shut the fuck up" and Fuck you, Sergeant" or words to that effect, in a hostile and belligerent manner.  Specification 3: Did on or about 990214, was disrespectful in language and deportment toward Sergeant P_, U.S. Marine Corps, a noncommissioned officer, then known by the said Lance Corporal [Applicant] to be a superior noncommissioned officer who then was in the execution of his office, by saying to him, "I don't give a fuck what rank you are, when we get out of this hummer me and you are going at it”, or words to that effect, in a hostile and menacing manner and by lunging at him in a menacing manner.  Specification 4: Did on or about 990214, was disrespectful in language and deportment toward Sergeant A_ C. K_, U.S. Marine Corps, a noncommissioned officer then known by the said Lance Corporal [Applicant] to be a superior noncommissioned officer who then was in the execution of his office, by saying to him, "Shut the fuck up nigger" and "Fuck you nigger, I'll beat your ass" or words to that effect, by standing up and stepping toward the said Sergeant K_ in a hostile and belligerent manner and by swinging at him with his fist.  Specification 5: Did on or about 990214, was disrespectful in language and deportment toward Sergeant E_ D. M _, U.S. Marine Corps, a noncommissioned officer, then known by the said Lance Corporal [Applicant] to be a superior noncommissioned officer who then was in the execution of his office, by saying to him, "Fuck you, Sergeant" and "As soon as this vehicle stops I'm going to kick your ass", or words to that effect, in a hostile and belligerent manner.
	Charge II:  violation of the UCMJ Article 134: Drunk and disorderly on or about 990214.
	Findings:  to Charge I and specifications 1, 2, 4 and 5 thereunder, guilty.  To specification 3 under Charge I, not guilty.  To Charge II and specification thereunder, guilty.  
	Sentence:  Confinement for 120 days, forfeiture of $639.00 pay per month for 4 months, reduction to E-1.
	CA 990825:  Sentence approved and ordered executed.

990722:	To confinement as part of sentence of SPCM.	

991019:	Special Court-Martial.
	Charge I:  violation of the UCMJ Article 112a: Did, at unknown location on diverse occasions, between 980901 and 990731, wrongfully use methamphetamine.
	Findings:  to Charge I and specification 1 thereunder, guilty.
	Sentence:  Confinement for 5 months (suspended for 12 months), and a bad conduct discharge.
	CA 991019:  Sentence approved and, except for the bad conduct discharge, will be executed, but the execution of that part of the sentence extending to all confinement is suspended for a period of twelve (12) months from the date of trial, at which time, unless sooner vacated, the suspended portion will be remitted without further action.

991027:	From confinement to duty.
	
000207:	To appellate leave.

000808:	Navy-Marine Corps Court of Military Review:  Affirmed findings and sentence.

001129:	Special Court-Martial Supplemental Order:  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 001129 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 by appellate review authority, 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:  The Applicant, through counsel, contends that aspects of his post-service conduct, to include continuous employment and additional education should be considered in the recharacterization of his discharge.  The NDRB is authorized to consider post-service factors in the recharacterization of a discharge even though 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.  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, and certification of non-involvement with civil authorities are examples of documents that may be provided to the Board to receive consideration of relief based on post-service conduct.  At this time, the documentation provided by the Applicant is not sufficient for the Board to consider an upgrade to the characterization of discharge.  Relief on this basis is 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 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  UCMJ Article 112a, Wrongful use of controlled substances.

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