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

 ex-Pvt, USMC
Docket No. MD02-01270

Applicant’s Request

The application for discharge review, received 20020906, requested that the characterization of service on the discharge be changed to honorable.  The Applicant requested a personal appearance hearing review in the Washington National Capital Region.  The Applicant did not designate a representative on the DD Form 293.  In the acknowledgement letter, the Applicant was informed that the Naval Discharge Review Board (NDRB) first conducts a record review prior to any personal appearance hearing.

Decision

A record review was conducted in Washington, D.C. on 20030812.  After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, no impropriety or inequity in the characterization of the Applicant’s service was discovered by the NDRB.  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 was going through a nasty divorce.  Came back from the 24the MEU found my wife and another Marine living in my home.  I gave up on life.  Very regretfully for giving up on the Best Experience of my Life!  So I wish for you gentlemen to give me a higher discharge.

Documentation

Only the Applicant’s service and medical records were reviewed, as the Applicant did not provide additional documentation for the Board to consider.

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: USMCR(J)		950223 - 950321	COG

Period of Service Under Review:

Date of Enlistment:  950322		Date of Discharge:  990315

Length of Service (years, months, days):

	Active:    03  11  24 (Excludes lost time, confinement time and appellate leave.)
	Inactive:  None

Age at Entry:  22			Years Contracted:  4 

Education Level:  12			AFQT:  32

Highest Rank:  LCpl

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  3.2 (6)			Conduct:  3.9 (5)

Military Decorations:  None

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

Days of Unauthorized Absence:  46 

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:

970509:	Counseled for deficiencies in performance and conduct [U.A. from morning formation on 8 May 97 and threatened an NCO with insubordinate conduct].  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

970512:	NJP for violation of UCMJ, Article 86:  Unauthorized absence from 0700, 970508 to 0820, 970508 from HQSVCCo, 2dBn, 8thMar, 2dMarDiv; violation of UCMJ, Article 91 (2 Specs):  Spec 1 - Disrespect to an NCO, when told to report to Motor Transport in 15 minutes by Cpl G_, did in a disrespectful tone say “Yeah Right!” or words to that effect.  Spec 2 – when asked by Cpl G_ “What is the problem?” did in a disrespectful tone say “You!”; violation of UCMJ, Article 134:  communicating a threat, when ordered by Cpl G_ to “Get away from me.” Did say in a threatening tone “What are you going to do about it?”  
Awarded forfeiture of $258.00 pay per month for 1 month (suspended for 6 months), restriction and extra police duties for 14 days.  Not appealed.

970617:	Unauthorized absence since 0701.

970630:	Surrendered from unauthorized absence at 0700 (14 days).

970709:	NJP for violation of UCMJ, Article 86:  Unauthorized absence 0701 17 Jun 97 – 0700 30 Jun 97 from H&S Co., 2d Bn, 8th Mar, 2d Mar Div; violation of UCMJ, Article 90: At H&S Co., 2d Bn, 8th Mar, 17 Jun 97, willfully disobeyed LTCOL D_’s command to stay within a 150 mile radius of Marine Corps Base, Camp Lejeune, NC, while on ACB. 
	Award:  Forfeiture of 7 days pay ($286) for a period of 1 month, vacate forfeiture of 7 days pay for a period of 1 month ($286) (total of both forfeitures $572), restriction and extra duty for 14 days.  Not appealed.

970811:	Unauthorized absence since 0700.  [The date of commencement of UA was corrected from 970808 to 970811 during the court martial proceedings.]

970912:	Surrendered at 0940 (32 days).

970915:	Placed on pretrial restriction.

970930:	Pretrial confinement.

971114:	Special Court-Martial.
	Charge I:  violation of the UCMJ, Article 86 (4 Specifications):
	Specification 1:  Did, on or about 11 Aug 97, without authority, absent himself from his organization, and remained so absent until 12 Sep 97.
	Specification 2:  Did, on 20 Sep 97, at 1500 without authority, fail to go at the time prescribed to his appointed place of duty, to wit: restriction muster at Bldg 111, MCB, Camp Lejeune, NC.
	Specification 3:  Did, on 20 Sep 97 at 2145 without authority, fail to go at the time prescribed to his appointed place of duty, to wit: restriction muster at Bldg 111, MCB, Camp Lejeune, NC.
	Specification 4:  Did, on 21 Sep 97 at 0700 without authority, fail to go at the time prescribed to his appointed place of duty, to wit:  restriction muster at Bldg 111, MCB, Camp Lejeune, NC.
	Charge II:  violation of the UCMJ, Article 91 (3 Specifications):
	Specification 1:  Having received a lawful order from Sgt J.A. G_, USMC, a noncommissioned officer then known by the said LCpl F_ (Applicant) to be a noncommissioned officer, to remain with the duty noncommissioned officer for the remainder of the evening; to leave the duty noncommissioned officer’s sight only for chow and check in, an order which it was his duty to obey, did on board MCB, Camp Lejeune, NC, on or about 20 Sep 97, willfully disobey the same.
	Specification 2:  Having received a lawful order from Sgt R.F. B_, USMC, a noncommissioned officer then known by the said LCpl F_ (Applicant) to be a noncommissioned officer, to have a haircut by formation on 26 Sep 97, an order which it was his duty to obey, did on board MCB, Camp Lejeune, NC, on or about 26 Sep 97, willfully disobey the same.
	Specification 3:  On or about 16 Sep 97 was disrespectful in deportment towards Sgt R_ M_, USMC, a noncommissioned officer then known by the said LCpl F_ (Applicant) to be a superior noncommissioned officer, who was then in the execution of his office, by repeatedly facing away from and walking away from Sgt M_ while the said Sgt M_ was speaking to him.
	Findings:  to Charge I and specifications 1 though 4, - guilty.  
To Charge II and specifications 1 and 3 – guilty, specification 3 withdrawn and dismissed.  
	Sentence:  Confinement for 2 months, reduction to E-2, and a bad conduct discharge.
	CA 980325:  Sentence approved and ordered executed except for the BCD.  Period of retrial confinement from 30 Sep 97 through 13 Nov 97 (45 days) is credited toward the period of confinement.  MCB Brig, Camp Lejeune, NC is designated as the place of confinement.

971114:	To confinement, Sentence of SPCM.

971126:	From confinement, to duty.

980325:	To appellate leave.

980514:	NC&PB denied clemency and restoration.

980728:	NMCCCA:  Affirmed findings and sentence.

990315:	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 19990315 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.  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, Article 91, disrespect to a NCO.

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