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

   ex-Pvt, USMC
Docket No. MD02-01342

Applicant’s Request

The application for discharge review, received 20020917, requested that the characterization of service on the discharge be changed to honorable or general/under honorable conditions.  The Applicant requested a personal appearance hearing discharge review before a traveling panel closest to Victoria, TX.  The Applicant did not designate a 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, D.C. area.  The NDRB also advised that the Board first conducts a documentary (record) review prior to a personal appearance hearing.

Decision

A documentary discharge 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.  The offense plea was for attempt to wrongfully distribute – not Art. 80 Wrongful distribution of marijuana – since act of distribution never implemented, discharge inequitable based on isolated incident.

2.  Amount of marijuana in question since I was told of amount verbally, it may have been lesser amount.  In offense, it states agreeing to sell half a pound of marijuana then listing some amount of marijuana due to fact that amount unknown even to myself as stated in court.

3.  Action of Bad Conduct Discharge was brought forth due to previous incident 1995.  In which witness documentation not submitted by attorney at the time of court martial which pertained valuable information of not placing myself near incident.  Main evidence by prosecution was by opposing witnesses of myself wearing a black shirt and being Hispanic.

4.  I can not become an anti-drug task force agent with a Bad Conduct Discharge.  I pray The Board may see my determination and sincerity for moving forward with requested upgrade.

Documentation

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

Copies of DD Form 214 (Copy 1 and 4)
Applicant’s Texas Dept of Public Safety Crime Records dtd Jan 23, 1998
City of Victoria Police Check dtd Jul 16, 2001
Character Reference ltr from Victoria College Regional Police Training Center, H_ R_, dtd Nov 16, 1998
Character Reference undtd ltr from B_ A_, Bishop, Victoria Ward, Church of Jesus Christ of Latter-day-Saints
Applicant’s undtd Argument/Contentions concerning Article 80 – Wrongful distribution of Marijuana
Applicant’s Record of Service Proficiency & Conduct
Offense, Sentence, Action Order, as result of Court-Martial dtd June 2 1997
Record of Conviction by Special Court- Martial (Date of trial Feb 13, 1997)
Record of Conviction by Special Court Martial (Date of trial May 16, 1996)
Applicant’s notification/right election concerning NJP, dtd Nov 20, 1995
Service record entry whereby Applicant acknowledges explanation of Articles UCMJ on Jun 10, 1993 and again on Dec 9, 1993.
Statement from Sgt J_ J. S_, USMC, dtd Nov 17, 1995
Statement from Pvt J_ E. M_, USMC, dtd Nov 19, 1995
Statement from SPC R_ O. A_, dtd Nov 19, 1995
Statement from SPC I_ O_, dtd Nov 19, 1995
Statement from SOC A_ C_, dtd Nov 19, 1995
Certificate of Accuracy for Radar Tuning Fork, dtd Mar 3, 1992 ( 2 certificates)
Chronological Record (1070)
Weapons Firing Record, Competitive Marksmanship (1070)
Regular Registration for Victoria College 
Certificate of Completion, Criminal Justice, May 31, 1994
Certificate of Completion, Targeting Participation Rates, Texas Workforce Commission
Certificate of Completion, Criminal Justice
Certificate of Course Completion, Personal Finance, dtd Jun 8, 1995
High School Graduation Certificate dtd May 27, 1993
Copy of Social Security card and Certification of Birth
High School partial transcript
Copy of Social Security card, Certification of Birth and Texas Driver’s License
Applicant’s ltr to the Board, received Dec 31, 2002
Certification of Correctional Officer dtd Sep 27, 2002
Certification of Juvenile Detention Officer dtd Sep 27, 2002

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: USMCR(J)		920619 - 930607	COG

Period of Service Under Review:

Date of Enlistment:  930608		Date of Discharge:  980629

Length of Service (years, months, days):

	Active:    05  00  22 (Doesn’t excludes confinement time/appellate leave.)
	Inactive:  None

Age at Entry:  19			Years Contracted:  4 

Education Level:  12			AFQT:  63

Highest Rank:  LCpl

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  3.6 (11)			Conduct:  3.4 (11)

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM, SSDR, NATO Medal, AFSM, JMUA, HSM, Rifle Expert Badge, Pistol 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:

960516:	Special Court-Martial.
	Charge I:  violation of the UCMJ, Article 91:  Did assault a noncommissioned officer.
	Specification: Did, at U.S. Naval Station, Guantanamo Bay, Cuba, on or about 18 Nov 95, assault Sgt J.J. S_. USMC, a non-commissioned officer, then known to the said LCpl _ (Applicant) to be a noncommissioned officer who was then in the execution of his office, by shoving him in the back and striking him in the face with a closed fist.
	Charge II:  violation of the UCMJ, Article 134:  Was drunk and disorderly.
	Specification: Was, on board U.S. Naval Statin, Guantanamo Bay, Cuba, on or about 17 Nov 95, drunk and disorderly.
	Findings:  to Charge I - not guilty, but guilty of a lesser included offense in violation of Article 128, assault consummated by a battery.  Specification – guilty.
To Charge II and specification thereunder - Withdrawn and dismissed.
	Sentence:  Confinement for 45 days and reduction to E-2.
	CA 960703:  Sentence approved and ordered executed.  Marine Corps Base Brig, Camp Lejeune, NC, is designated as the place of confinement.

960516:	Applicant to confinement. Sentence of SPCM.

960622:	Applicant from confinement to full duty.

970213:	Special Court-Martial.
	Charge I:  violation of the UCMJ, Article 80:  Wrongful distribution of Marijuana.
	Specification:  Did, at or near Jacksonville, NC, and at or near Victoria, TX, between on or about 13 Nov 96 and on or about 4 Dec 96, attempt to wrongfully distribute some amount of marijuana by agreeing to sell a half a pound of marijuana, meeting with and receiving $200.00 as partial payment for the marijuana from another, driving to Telferner, TX, and receiving a money order in the amount of $200.00 for the marijuana, then shipping a package containing some amount of marijuana on the Greyhound Package Express system addressed to Mr. B_, 163 N_ Rd., Leland, NC, from L_ F_, M.D., 303 a_ Rd, Victoria, TX.
	Findings:  to Charge I and specification  thereunder, guilty.
	Sentence:  Confinement 150 days, forfeiture of $600.00 pay per month for 5 months, reduction to E-1, and a bad conduct discharge.
	CA 970602:  Sentence approved and ordered executed except for the BCD.

961204:	To confinement, Sentence of SPCM.

970407:	From confinement, to duty.

970429:	To appellate leave.

980204:	NMCCMR:  Affirmed findings and sentence.

980629:	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 19980629 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).

Issues 1-4.  In response to the Applicant’s issue, relevant and material facts stated in a court-martial specification are presumed by the NDRB to be established facts.  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 and documentation provided by the Applicant devoid of any mitigating or extenuating factors sufficient to offset the seriousness of the offense for which the discharge was awarded.  Relief denied.

The Applicant’s discharge characterization accurately reflects his service to his country.  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 128, assault; and Article 80, wrongful distribution of marijuana.

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