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

 ex-Pvt, USMC
Docket No. MD02-01002

Applicant’s Request

The application for discharge review, received 020708, 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 030722.  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.  During my stay with the Marine Corps I served to the best of my ability and I received a Good Conduct Medal and a National defense Service Medal.  I do not feel that I should be penalized for the rest of my life for a bad decision that I made as a teenager at the age of 18. The reason I am requesting an upgrade is due to the fact that when I was in the USMC, I was only 18 years old and I made some decisions that were not in the best interest of my future nor the best interest of the Marine Corps.  I had some serious family issues at the time which caused me to make some bad decisions that I do not feel that I should have to pay for the rest of my adult life.  I am currently trying to get my life back on the right track and I feel that this upgrade would be a step in the right direction.  
At the time I did not realize the ramifications of the decisions that I made would be so detrimental to me for the rest of my life or I would not have made those choices.  I realize now that I should have stayed in the Marine Corps and finished my tour of duty so that I would not be suffering for my mistakes in the years to come.

Documentation

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

Copy of DD Form 214

PART II - SUMMARY OF SERVICE

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

	Active:   USMC		None
	Inactive: USMCR(J)		900904 - 910715	COG

Period of Service Under Review:

Date of Enlistment:  910716		Date of Discharge:  951101

Length of Service (years, months, days):

	Active:    02  05  20
	Inactive:  None

Age at Entry:  19			Years Contracted:  4 

Education Level:  12			AFQT:  37

Highest Rank:  PFC

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  4.2 (6)			Conduct:  3.3 (6)

Military Decorations:  None

Unit/Campaign/Service Awards:  Rifle Marksman Badge, NDSM 

Days of Unauthorized Absence:  635 

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:

920115:	NJP for violation of UCMJ, Article 128:  Aboard MCB, Camp Geiger, NC, 1930, 920115, assaulted PFC B__, by putting a knife to his throat.
	Award:  Forfeiture of $205.00 pay per month for 1 month, restriction and extra duty for 14 days (suspended for 3 months).  No indication of appeal in the record.

920410:	Counseled for deficiencies in performance and conduct.  [Frequent involvement with military/civilian authorities and minor incidents prejudicial to good order and discipline.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

920730:	Declared a deserter.

940317:	Applicant apprehended civil authorities 0924, 940317 in Bronx, NY.

940317:	To confinement.

940425:	Special Court-Martial.
	Charge I:  violation of the UCMJ, Article 85: Did, on or about 920730, without authority and with intent to remain therefrom permanently, absent himself from his unit, to wit: 1ST Battalion, 8th Marine Regiment, 2nd Marine Division, Fleet Marine Force, Atlantic, located at Camp Lejeune, North Carolina, and did remain so absent in desertion until he was apprehended on or about 940316.
	Findings:  to Charge I and specification thereunder, not guilty, but guilty of the lesser offense of Article 86.
	Sentence:  Confinement for 70 days, forfeiture of $500.00 pay per month for 3 months, reduction to E-1, and a bad conduct discharge.
	CA 940928:  Sentence approved and except for that part of the sentence extending to a BCD will be executed, but the execution of that part of the sentence extending to confinement in excess of 50 days is suspended for a period of 6 months from the date of trial, at which time, unless sooner vacated, the suspended part of the sentence will be remitted without further action.

940425:	Applicant waived clemency review [Extracted from NC&PB Computer System].

941214:	To appellate leave.

950428:	NMCCMR:  Affirmed findings and sentence.

950927:	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 951101 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.  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 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 86, unauthorized absence for more than 30 days.

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