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

 ex-Pvt, USMC
Docket No. MD02-00976

Applicant’s Request

The application for discharge review, received 020627, 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 designate a representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 030331.  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 S_ P. L_ (Applicant) would like to request that my Bad Conduct Discharge be upgraded.
     The reason for this request, is that I fel a Bad Conduct Discharge was inappropriate & unfair due to the circumstances.   The BCD came as a result of refusal to train.  Refusal to Training was the result of physical abuse going on in SOI.  Documents attached are the investigative outcome from the offices of Sen. J_ B_ and Cong. C_ H_, in this matter.   After the investigation was complete and abuse substantiated, the Sergeants involved were disciplined, but allowed right back in training instructor positions.  Therefore, nothing had changed.   I would greatly appreciate the consideration to upgrade my discharge, since my love of country and freedom are still my top priorities.

Documentation

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

Copy of DD Form 214
Letter to Applicant from Congressman C_ J_ dtd Mar 9, 1999
Letter to Congressman C_ J_ from D. L. W_, Col, USMC, Dir, Assistance & Investigations, dtd Feb 22, 1999
Letter to Mrs. T_ R_ for S_ P_ L_ (Applicant) from Senator J_ B_, dtd Mar 9, 1999
Letter to Senator J_ B_ from D. L. W_, Col, USMC, Dir, Assistance & Investigations, dtd Feb 22, 1999
Letter from BCNR to Congressman C_ J_ dtd Apr 4, 2002
Applicant's letter of explanation to the Board dtd Dec 5, 2002

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: USMCR(J)		971209 - 980727	COG

Period of Service Under Review:

Date of Enlistment:  980728		Date of Discharge:  000403

Length of Service (years, months, days):

Active:    01  08  06 (Does not exclude lost time, confinement time and  
                                 appellate leave.)
	Inactive:  None

Age at Entry:  17			Years Contracted:  4 

Education Level:  NFIR

AFQT:  NFIR

Highest Rank:  Pvt

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  1.5 (1)			Conduct:  1.5 (1)

Military Decorations:  None

Unit/Campaign/Service Awards:  Rifle Expert Badge 

Days of Unauthorized Absence:  (13)981122-981204 

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:

981122:	Applicant to unauthorized absence at 0431 this date; returns from UA status at 1125 on 981205 (13 days/surrendered).

981211:	NJP for violation of UCMJ Article 86:  At B Co, Infantry Training Battalion, School of  Infantry, Marine Corps Base, Camp Pendleton, CA, UA from 0431 on 981122 to 1125 on 981205.
	Awarded forfeiture of $216.00 per month for 1 month, restriction and 
	extra duties for 14 days.  Not appealed.

981214:	Placed in pretrial restriction.

990125:	Special Court-Martial.
	Charge I:  violation of the UCMJ Article 91: 
	Specification - Having received a lawful order from 1stSgt D.M. J_, USMC, a superior SNCO, then known by the accused to be a superior SNCO, to go out to the parking lot so that he could get his 782 gear so he could train w/Charlie Co, or words to that effect, an order which it was his duty to obey, did, on or about 981203, willfully disobey the same.
	Findings:  to Charge I and specification thereunder, guilty. 
	Sentence:  Confinement for 1 month, forfeiture of $639.00 pay per month for 1 month, and a bad conduct discharge.
	CA 990407:  Sentence approved and ordered executed except for the BCD and execution of that portion of the sentence adjudging confinement in excess of 15 days is suspended for a period of twelve months from the date of this action.

990125:	Applicant to confinement in accordance with sentence of SPCM; from confinement back to duty on 990205 (12 days).

990212:	Applicant to appellate leave.

991015:	Navy-Marine Corps Court of Criminal Appeals:  Affirmed findings and sentence of SPCM.

000403:	SPCM 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 000403 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 contends that his discharge is inequitable as the grounds for his court-martial conviction and subsequent separation are extenuated by substantiated reports of mistreatment of trainees.  With respect to special courts-martial tried under the Uniform Code of Military Justice, the actions of the NDRB are restricted to upgrades based upon clemency only.  In addition, all relevant and material details stated in those judicial proceedings are presumed by the NDRB to be established facts.  As such, the Applicant's particular case was considered under the pertinent standards of equity to determine if clemency was warranted.  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.  While the Board did consider the substantiated report of improper treatment of trainees, the Applicant's Record of Trial showed that the Applicant had entered into a pre-trial agreement admitting his guilt.  Relief in this basis is therefore denied.

The following is provided for the edification of the Applicant.  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 Applicant has provided no such documentation for the Board to consider.

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 91, Insubordinate conduct (willfully disobeying) a noncommissioned officer.

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