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

  ex-PVT, USMC
Docket No. MD03-00057

Applicant’s Request

The application for discharge review, received 20021002, 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.  Subsequent to the application, the Applicant obtained representation by Veterans of Foreign Wars. 

Decision

A documentary discharge review was conducted in Washington, D.C. on 20030912.  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 request that my discharge be up-graded to a General/Under Honorable Conditions because this was an isolated incident.  In which I attempted and sought help through proper chain of command.  And also spoke with a base counselor based on marital problems regardless of improper treatment and advice, I regret my action and request that my discharge may be upgraded to a General/Under Honorable Conditions.

2.	(VFW Issue) We concur with the Applicant’s contention that his discharge be upgraded.  Since this Applicant served in a combat zone, we ask you to consider SECNAVINST 5420.174C PAR 9.3 (1) (d) in your decision.  We refer this case to the Board for their careful and compassionate consideration and request the Applicant’s discharge be reviewed for clemency. 

Documentation

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

Copy of DD Form 214
Copy of Verification of Service Letter from Commanding Officer, 1st Battalion, 2nd Marines

PART II - SUMMARY OF SERVICE

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

	Active:   USMC		None
	Inactive: USMCR(J)		891019 - 891024	COG

Period of Service Under Review:

Date of Enlistment:  891025		Date of Discharge:  970128

Length of Service (years, months, days):

	Active:    07  03  04  (Does not exclude lost time)
	Inactive:  None

Age at Entry:  18			Years Contracted:  4 

Education Level:  12			AFQT:  65

Highest Rank:  LCpl

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  4.3 (8)			Conduct:  3.9 (9)

Military Decorations:  None

Unit/Campaign/Service Awards:  SSDR, NDSM, NUC, SWASMw/2*, KLM, Rifle Expert Badge (2nd) 

Days of Unauthorized Absence:  901 

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:

920902:	To UA.

950220:	Applicant surrendered to 1st BN, 2DMARDIV, MARFORLANT at 0700, 950220.

950516:	Special Court-Martial.
	Charge I:  violation of the UCMJ, Article 86: Unauthorized absence from 920902 to 950220 (901 days/S).
	Findings:  to Charge I and specification thereunder, guilty.
	Sentence:  Confinement for 90 days, reduction to E-1, and a bad conduct discharge.
	CA 960207:  Sentence approved and ordered executed except for the BCD.
	
950516:	To confinement, sentence of SPCM.

950730:	From confinement, to duty.

950801:	Waiver of Clemency Review.

960108:	To appellate leave.

960416:	NMCCMR:  Affirmed findings and sentence.

970128:	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 19970128 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 and 2.   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