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

 ex-PVT, USMC 
Docket No. MD03-00240

Applicant’s Request

The application for discharge review, received 20021121, requested that the characterization of service on the discharge be changed to general/under honorable conditions.  The applicant requested a personal appearance hearing discharge review before a traveling panel.  The applicant listed Civilian Counsel as his representative on the DD Form 293.  In the acknowledgement letter, the applicant was informed that the Naval Discharge Review Board (NDRB) does not travel, all hearings are held in the Washington, D.C. Area.

Decision

A personal appearance discharge review hearing was conducted in Washington, D.C. on 20031006.  After a thorough review of the testimony, records, supporting documents, facts and circumstances unique to this case, NDRB discovered no impropriety or inequity in the characterization of the Applicant’s service at the time of discharge.  However, the NDRB found that the Applicant’s case warranted an act of clemency.  The Board’s vote was four to one that the character of the discharge shall change.  The discharge shall change to:  UNDER OTHER THAN HONORABLE CONDITIONS/ As a result of a courts-martial (SPCM) - other, authority:  MARCORSEPMAN Par. 1105.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

Issues submitted by Applicant’s counsel/representative:

“1.  My discharge was inequitable because the conduct upon which it is based has been  
mitigated by overall good service and a demonstration of remorse at the court 
martial.”
“2.  My discharge was inequitable because the conduct upon which it is based was 
       isolated relative to its severity.”
“3.   My discharge was inequitable because the conduct upon which it is based was 
 mitigated by subsequent good conduct and cause of steps to rehabilitate.”
“4.   My discharge should be upgraded because appellant had taken positive steps since 
        separation and remain law all binding.  The bad conduct discharge has served its 
        purpose as a general and specific deterrent and is now preventing complete 
        rehabilitation.”
“5.   My discharge was inequitable because the appellant has always had a propensity for 
        honesty and truthfulness.  Throughout his active service, and even at his court 
  martial, the appellant pled guilty early on in this proceeding.  Appellant’s character 
  trade should be distinguished from those individuals who do not demonstrate such  
  maturity and remorse.”
“6.    My discharge should be upgraded because I have made tremendous strives toward 
  contributions in educational pursuits, a good employment track record, and being a 
  contributing member of society.  My post service conduct has been exemplary.” 

Documentation

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

Declaration of Service by Mail 
Letter from Attorney at Law A_ V. E_
Exhibit 1: Application for Discharge Upgrade Containing A through Z and AA through JJ (42 pages)
Exhibit 2: 2-A through 2-K: Letters of Recommendation (12 pages)
Exhibit 3: 3-A through 3-I: Documents relating to LCpl B_’s service with the United States Marine Corps (9 pages)
Exhibit 4: 4-A through 4-S: Educational courses attended and completed (18 pages). 

PART II - SUMMARY OF SERVICE

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

	Active:   USMC		None
	Inactive: USMCR(J)		900830 - 910805	COG

Period of Service Under Review:

Date of Enlistment:  910806		Date of Discharge:  950418

Length of Service (years, months, days):

	Active:    03  08  13
	Inactive:  None

Age at Entry:  19			Years Contracted:  4 

Education Level:  12			AFQT:  37

Highest Rank:  LCpl

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  4.1 (5)			Conduct:  4.1 (5)

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM, HSM, NUC, OSR 

Days of Unauthorized Absence:  9 

Character, Narrative Reason, and Authority of Discharge (at time of issuance):

BAD CONDUCT DISCHARGE/As a result of a courts-martial (SPCM) - other, authority:  MARCORSEPMAN Par. 1105.

Chronological Listing of Significant Service Events:

921025:	Certified as Corporal of the Guard due to outstanding performance above peers.

930708:	During a unit urinalysis sweep Applicant voluntarily admitted to repeated use of an illegal drug (marijuana) to cope with personal problems.

930909:	NJP for violation of UCMJ, Article 90: Willfully disobeying a superior commissioned officer, to wit: SNM on or about 2140, 930808 did willfully disobey a direct order from the BnOOD to police an area being used by SNM.  Violation of UCMJ, Article 112a: Wrongfully use a controlled substance, to wit: SNM admitted to the use of marijuana to his company commander.
Awarded forfeiture of $400.00 per month for 2 months, restriction and 
extra duties for 45 days, reduction to E2.  Not appealed.

930928:	Counseled for deficiencies in performance and conduct.  [Lack of responsible behavior and UA.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

940125:	Special Court-Martial.
	Charge I:  violation of the UCMJ, Article 86 (7 Specifications):
	Specification 1: In that PFC [Applicant], U.S. Marine Corps, while on active duty, did, on or about 930919, without authority, absent himself from his organization, to wit: 1ST Battalion, 7th Marines (Rein), 1st Marine Division (Rein), located at Marine Corps Air Ground Combat Center, Twentynine Palms, California, and did remain so absent until at or about 930928 [9 das/S]; Specification 2: In that PFC [Applicant], U.S. Marine Corps, while on active duty, did, on or about 0700, 930929, without authority, fail to go at the time prescribed to his appointed place of duty, to wit: Restricted Muster, located at Building 1430, Marine Corps Air Ground Combat Center, Twentynine Palms, California; Specification 3: In that PFC [Applicant], U.S. Marine Corps, while on active duty, did, on or about 0630, 931001, without authority, fail to go at the time prescribed to his appointed place of duty, to wit: Battalion Working Party, located at Building 1430, Marine Corps Air Ground Combat Center, Twentynine Palms, California; Specification 4: In that PFC [Applicant], U.S. Marine Corps, while on active duty, did, on or about 0900, 931002, without authority, fail to go at the time prescribed to his appointed place of duty, to wit: Restricted Muster, located at Building 1430, Marine Corps Air Ground Combat Center, Twentynine Palms, California; Specification 5: In that PFC [Applicant], U.S. Marine Corps, while on active duty, did, on or about 0700, 931003, without authority, fail to go at the time prescribed to his appointed place of duty, to wit: Restricted Muster, located at Building 1430, Marine Corps Air Ground Combat Center, Twentynine Palms, California; Specification 6: In that PFC [Applicant], U.S. Marine Corps, while on active duty, did, on or about 0700, 931016, without authority, fail to go at the time prescribed to his appointed place of duty, to wit: Restricted Muster, located at Building 1430, Marine Corps Air Ground Combat Center, Twentynine Palms, California; Specification 7: In that PFC [Applicant], U.S. Marine Corps, while on active duty, did, on or about 0700, 931017, without authority, fail to go at the time prescribed to his appointed place of duty, to wit: Restricted Muster, located at Building 1430, Marine Corps Air Ground Combat Center, Twentynine Palms, California.
	Findings:  to Charge I and specifications 1, 5, 6 and 7 thereunder, guilty.  To specification 2, 3, and 4 under Charge I, not guilty.
	Sentence:  CHL for 30 days, forfeiture of $555.00 pay per month for 1 month, reduction to E-1, and a bad conduct discharge.
	CA 940809:  Sentence approved and ordered executed except for the BCD.
	
940125:	To confinement, Sentence of SPCM [Extracted from DD Form 214].

940224:	NC&PB denied clemency and restoration.

940307:	Applicant acknowledged being evaluated by Medical Officer and diagnosed as being a drug or alcohol abuser, non-dependent, and that he is not entitled to treatment in conjunction with discharge.

940307:	From confinement, to duty [Extracted from DD Form 214]. 

940928:	Applicant notified of status change from voluntary to involuntary appellate leave.

941118:	To appellate leave.

950111:	NMCCCA:  Affirmed findings and sentence.

950328:	COMA:  Petition for review denied.

950418:	SSPCMO:  Article 71c, UCMJ, having been complied with, bad conduct discharge ordered executed.

970331:	NDRB documentary record review Docket Number MD97-00570 conducted.  Determination:  discharge proper and equitable; relief not warranted.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19950418 with a bad conduct discharge that was the adjudged by a properly constituted special court-martial.  The sentence was 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 at the time issued (D and E).

Issues 1-6.  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 overall service record and evidence of post-service conduct warranted an act of clemency concerning the characterization of service.  The Board voted four to one to upgrade the characterization of service to under other than honorable conditions.  Partial relief is therefore granted.

Pertinent Regulation/Law (at time of discharge)

A.  Paragraph 1105, DISCHARGE ADJUDGED BY SENTENCE OF COURTS-MARTIAL, of the Marine Corps Separation and Retirement Manual, (MCO P1900.16D), effective 27 Jun 89 until 17 Aug 95.

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.

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	
		Washington, D.C.  20374-5023