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

 ex-Pvt, USMC 
Docket No. MD03-00267

Applicant’s Request

The application for discharge review, received 20021203, requested that the characterization of service on the discharge be changed to honorable.  The Applicant requested a personal appearance discharge review before a traveling panel closest to San Diego, CA.  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 documentary record review prior to any personal appearance hearing and also advised that the NDRB does not travel, all hearings are held in the Washington National Capital Region.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20031017.  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/As a result of a courts-martial (SPCM) – Other, authority: MARCORSEPMAN Par. 1105.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

“1.  MY CONDUCT AND EFFICIENCY RATINGS/BEHAVIOR AND PROFICIENCY MARKS WERE MOSTLY PRETTY GOOD ASWAUTH.”  [ASWAUTH - AS SUCH WARRANTS AN UPGRADE TO HONORABLE.]

“2.  I RECEIVD AWARDS AND DECORATIONS ASWAUTH.”

“3.  I HAD A PRIOR HONORABLE DISCHARGE ASWAUTH.”

“4.  I HAVE BEEN A GOOD CITIZEN SINCE DISCHARGE ASWAUTH.”

“5.  I WAS NOT PROPERLY COUNSELED ABOUT THE DISCHARGE ASWAUTH.”

“6.  MY LAWYER WAS INEFFECTIVE COUNSEL ASWAUTH.”

Documentation

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

Copy of DD Form 214
Copy of DD Form 214 (USA) (86-01-07 to 89-01-06)
Police Check, County of San Diego, dtd Oct 30, 2002
Applicant’s résumé
Applicant’s Child Birth Certificate (DOB: May 16, 1993)
Applicant’s Child Elementary School grades
Applicant’s Child Birth Certificate (DOB: May 10, 1996)
Applicant’s Child Elementary School grades
Certificate of Completion, Sales Consultant, Ford Motor Co, dtd Feb 26, 2002
Certificate of Completion, Sales Consultant, Ford Motor Co, dtd Aug 13, 2002
Performance Review, Pepsi-Cola Co, (Jan 1, 1998 – Dec 31, 1998) (2 pages)
Performance Review, Pepsi-Cola Co, (Sep 30, 1995 – Apr 1, 1996) (2 pages)
Letter of Promotion, Pepsi-Cola Co, dtd Oct 17, 1994 with performance review
Applicant’s Marriage Certificate (Date of Marriage: Jan 16, 1993)
Applicant’s Spouse Statement dtd Nov 14, 2002
Dept of Army, Certificate of Achievement, Achieving the Maximum Score on the Performance Oriented Infantry Qualification Test for Cycle Number 14-86, dtd April 11, 1986
Dept of Army, The Army Achievement Medal, as an M60 Machine Gunner, dtd May 20, 1988
Dept of Army, The Army Achievement Medal (First Oak Leaf Cluster), Outstanding Performance of Duty as a Radio Telephone Operator during the Hammelburg Military Operation, dtd Dec 31, 1986
Dept of Army, The Army Achievement Medal, Outstanding Performance of Duty during the French Commando Course, dtd Mar 31, 1987
8th Infantry Regiment Certificate, Expert Infantryman’s Badge, dtd Aug 19, 1988
Dept of Army, The Army Achievement Medal, Meritorious Service while serving during Annual Training 1989, dtd Jun 10, 1989
Certificate of Commendation, USMC, Performance of duty at Recruiting Training, dtd Jan 25, 1990
Meritorious Promotion Certificate to Lance Corporal, dtd Feb 2, 1990

PART II - SUMMARY OF SERVICE

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

	Active:   USA			860107 - 890106	HON
	Inactive: USMCR (J)		891005 - 891108	COG

Period of Service Under Review:

Date of Enlistment:  891109		Date of Discharge:  941212

Length of Service (years, months, days):

	Active:    05  01  04 (Doesn’t exclude lost time.)
	Inactive:  None

Age at Entry:  21			Years Contracted:  6

Education Level:  12			AFQT:  74

Highest Rank:  LCpl

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  4.6 (7)			Conduct:  4.5 (7)

Military Decorations:  AAM (w/3 Oak Leaf Clusters)

Unit/Campaign/Service Awards:  Rifle Expert Badge (3), NDSR, SSDR, NUC, AOSSR 

Days of Unauthorized Absence:  48

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:

900912:	Counseled for deficiencies in performance and conduct [drunk and disorderly].  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

900914:	NJP for violation of UCMJ, Article 92:  On or about 4 Sep 90, fail to obey a lawful order issued by Cpl M_, M.D. to clean SNM’s cubicle in barracks 2257, an order which it was his duty to obey; 
Violation of UCMJ Article 128: On or about 4 Sep 90, commit an attempted assault upon Cpl M_ M.D. by walking towards him with an antenna vehicle mount with the intent of striking him.
	Award:  Forfeiture of $150 per month for 1 month, restriction and extra duty for 14 days.  Not appealed.

910417:	NJP for violation of UCMJ, Article 109:  Damage, destroy, or waste property other than military property of the United States.
	Award:  Forfeiture of $400 per month for 2 months, restriction and extra duty for 45 days, reduction to E-2.  Not appealed.

920825:	To Unauthorized Absence, 0601.

920829:	Surrendered from Unauthorized Absence at 0700.  (4 days)

920909:	To Unauthorized absence, 0701.

920911:	Surrendered from Unauthorized Absence at 1300.  (3 days)

921216:	Special Court-Martial. (Trial dates 24 Nov & 16 Dec 92)
	Charge I:  violation of the UCMJ, Article 86 (2 Specifications):
	Specification 1: Unauthorized absence from 25 – 29 Aug 92.
	Specification 2: Unauthorized absence from 9 – 11 Sep 92.
	Charge II:  violation of the UCMJ, Article 112A.
	Specification:  Use of controlled substance (LSD) between 28 May 92 and 3 Jun 92.
	Findings:  to Charge I and specification 1 thereunder, guilty.  To specification 2 under Charge I, withdrawn.  To Charge II and specification thereunder, guilty.  
	Sentence:  Forfeiture of  $250.00 pay per month for 1 month, reduction to E-1, and a bad conduct discharge.
	CA 930601:  Sentence approved and ordered executed except for the BCD.
	
930730:	NC&PB denied clemency and restoration.

930915:	To appellate leave.

931108:	NMCCMR:  Affirmed findings and sentence.  NMCCMR ordered the court martial corrected to reflect that Specification 2 of Charge I was withdrawn.

941212:	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 19941212 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).

In response to the Applicant's issues, relevant and material details 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 tried under the Uniform Code of Military Justice (UCMJ), the action of the NDRB is restricted to upgrades based upon clemency only (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 Applicant’s service records show no mitigating or extenuating factors sufficient to offset the seriousness of the offenses for which the discharge was awarded.  To the contrary, the Applicant’s record is severely tarnished by counseling for drunk and disorderly conduct and the awarding of non-judicial punishment (NJP) on two separate occasions for violations of UCMJ Article 92, Failure to obey order or regulation; Article 128, Assault; and Article 109, Waste, spoilage, or destruction of property other than military property of the United States.  Relief, is therefore, denied.

Normally, to permit relief, an error or injustice must have existed during the period of enlistment in question.  No such error or injustice occurred during the Applicant’s enlistment.  While he may feel that his previous honorable service in the Army, his proficiency and conduct marks during the period of enlistment in question and the awards and decorations he had received are considerable enough to warrant an upgrade, they do not mitigate the Applicant’s disobedience of the orders and directives that regulate good order and discipline in the naval service.  His disregard of those orders and directives demonstrated he was unsuitable for further service.  It must be noted that most Marines serve honorably and well, thereby, earning honorable discharges.  In fairness to those Marines, commanders and separation authorities are tasked to ensure the undeserving receive no higher characterization than is due.  An upgrade to honorable conditions would be inappropriate.  Relief denied. 

The Applicant stated under oath, he understood the elements of the offenses with which he was charged.  He freely admitted he was guilty of violating the Articles of the UCMJ under which he was charged. The Applicant’s misconduct is clearly documented in his service record warranting separation with a Bad Conduct Discharge as awarded by Special Court-Martial.  The Applicant’s counsel advised him of this possibility and the Applicant acknowledged this possibility.  Additionally, he stated to the judge he was “satisfied” with his council and he “believed” his council’s advice had been in his “best interest.”  The Court-Martial convening authority accepted the Applicant’s guilty pleas and he was discharged accordingly.  The receipt of commendatory awards and favorable performance and conduct evaluations during the Applicant’s tour do not guarantee him an honorable discharge. When a Marine’s service has been honest and faithful, it is appropriate to characterize that service as honorable.  A less than honorable discharge is warranted when significant negative aspects of a member's conduct or performance of duty outweigh the positive aspects of the member's military record.  The Applicant’s service is so marred.  The Applicant’s conduct falls well short of that required for an honorable characterization of service.  Relief denied.

The NDRB recognizes that serving in the Marine Corps is very challenging.  
Our country is fortunate to have men and women willing to endure the hardships and sacrifices required in order to serve their country.  It must be noted that most Marines serve honorably and well and therefore earn honorable discharges.   In fairness to those Marines, commanders and separation authorities are tasked to ensure that undeserving Marines receive no higher characterization than is due.  The NDRB respects the fact that the Applicant tried, but his service has been equitably characterized. Relief is not warranted.

The following is provided for the edification of the Applicant.  There is no law or regulation that provides for an unfavorable discharge to be upgraded based solely on the passage of time or good conduct in the civilian life subsequent to leaving the service.  However, the NDRB is authorized to consider post-service factors in the recharacteriza-tion of a discharge.  Outstanding post-service conduct, to the extent that such matters provide a basis for a more thorough understanding of the Applicant's performance and conduct during the period of service under review may be considered.  Verifiable proof of post-service accomplishments must be provided in order for the Applicant to claim post-service conduct and behavior as a reason to upgrade a less than honorable discharge.  Evidence of continuing educational pursuits, an employment record, documentation of community service, certification of non-involvement with civil authorities, and credible evidence of a substance-free lifestyle are examples of verifiable documents that may be provided to receive consideration for relief based on post-service conduct.  At this time, the Applicant has not provided sufficient verifiable documentation of good character and conduct to mitigate his misconduct while on active duty.  Relief is 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 her 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 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, Absence without leave; Article 92, Failure to obey order or regulation; Article 109, Waste, spoilage, or destruction of property other than military property of the United States; Article 112a, Wrongful use, possession, etc., of controlled substances (LSD); Article 128, Assault.

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