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

 ex-Pvt, USMC
Docket No. MD02-01033

Applicant’s Request

The application for discharge review, received 020710, requested that the characterization of service on the discharge be changed to honorable or 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 030515.  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 believe I was unfairly given a bad conduct discharge due to the fact that I was subjected to an environment that was full of drug use, alcohol abuse and worst of all drug trafficking, contrary to the court papers.  I did attempt to notify my chain of command regarding these unhealthy activities.  I was told this "was to go no further, and to keep my mouth closed."  I failed to take this advice and paid the price by being severely hazed.  I have a lot of respect for honorable marines and other military personnel, however while I was in the fleet, very few of the marines in my platoon had much honor or discipline.  After repeated attempts to inform my chain of command of this behavior I took the responsibility into my own hands.  I began receiving threats and consequently found myself in four fights in a two week period.  I determined that my only real option was to go AWOL.  After my court date they decided that they would not discharge me even though that was my request.   I believe this shows that I was an outstanding marine.  Not wanting to go back to the same environment I went AWOL again once court was over.  The price I paid was 3 months in the brig.  I learned many lessons from my experience.  Since being released from jail I have received an Associates degree in biology and should graduate with a Bachelor's degree in both Human Biology and Business Finance within a year.  I have never done any drugs and have no criminal record.  An upgrade to honorable would greatly assist me in my business endeavors, I take full responsibility for my decision to go AWOL and I believe that I have paid the price.  Having a Bad Conduct Discharge has caused me many problems and cost me many jobs over the past 6 years or so.  When I went AWOL I had the best intentions, I just handled the situation incorrectly, and as an adult I now know this.  I didn't want to be in a bad environment and I removed myself from it with good intentions.  Please review the documents and I would greatly appreciate it if my discharge was upgraded to an Honorable Discharge.

Documentation

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

 SPCM (Stipulation of Facts) dated April 2, 1996 (2 pages) 

PART II - SUMMARY OF SERVICE

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

	Active:   USMC		None
	Inactive: USMCR(J)		941026 - 950129	COG

Period of Service Under Review:

Date of Enlistment:  950130		Date of Discharge:  970909

Length of Service (years, months, days):

	Active:    01  10  07
	Inactive:  None

Age at Entry:  19			Years Contracted:  4 

Education Level:  12			AFQT:  56

Highest Rank:  PFC

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  3.0 (5)			Conduct:  2.1 (7)

Military Decorations:  None

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

Days of Unauthorized Absence:  276 

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:

950920:	Declared a deserter.

960403:	Special Court-Martial.
	Charge I:  violation of the UCMJ, Article 86.
	Specification: Unauthorized absence from 950821 until 960103 (132 days).
	Finding:  to Charge I and the specification thereunder, guilty.
	Sentence:  Confinement for 45 days, forfeiture of $583.00 pay per month for 1 month, reduced to E-1.
	CA action 960611:  Sentence approved and ordered executed [Extracted from SJA's memorandum dated December 13, 1996].
	
960503:	Declared a deserter.

961004:	Special Court-Martial.
	Charge I:  violation of the UCMJ, Article 86, Specification: Did, on or about 960403, without authority, absent himself from his unit until he was apprehended on 960826 (144 days).
	Findings:  to Charge I and specification thereunder, guilty.
	Sentence:  Confinement for 100 days, forfeiture of $583.00 pay per month for 3 months, and a bad conduct discharge.
	CA 961219:  Sentence approved and, except for the bad conduct discharge executed, but execution of that portion of the sentence adjudging confinement in excess of 60 days is suspended for a period of twelve months from the date of this action, at which time, unless sooner vacated, the suspended portion of the sentence will be remitted without further action.
	
961107:	To appellate leave.

970613:	NMCCMR:  Affirmed findings and sentence.

970909:	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 970909 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’s discharge characterization accurately reflects his service to his country.  Normally, to permit relief, an error or inequity must have existed during the period of enlistment in question.  No such error or inequity is evident during the Applicant’s enlistment.  Additionally, there is no law, or regulation, which provides that an unfavorable discharge may be upgraded based solely on the passage of time, or good conduct in civilian life, subsequent to leaving the service.  Relief not warranted.

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