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

 ex-Pvt, USMC 
Docket No. MD03-00400

Applicant’s Request

The application for discharge review was received on 20030107.  The Applicant requests that the characterization of service received at the time of discharge be changed to honorable.  The Applicant requests a documentary record discharge review.  The Applicant did not designate a representative on the DD Form 293. Subsequent to the application, the Applicant obtained representation by the American Legion.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20031121.  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.  However the Board discerned an impropriety in the Applicant’s narrative reason for separation.  The Board’s vote was unanimous that the character of the discharge shall not change, but that the narrative reason for separation will change.  The discharge shall change to:  GENERAL (UNDER HONORABLE CONDITIONS)/COMPLETION OF REQUIRED ACTIVE SERVICE, authority: MARCORSEPMAN Par. 1005.  The separation code is “JBK1.”

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

“1.  Discharge much too harsh for act.”

“2.  I would still be in the Marine Corps if I had not been discharged.  I understand being reduced in rank at the time, some privileges revoked, but not discharged.”

“3.  Would also like to have my earned ribbons, medals and personal items returned to me.  My uniforms, etc, were taken and not returned upon discharge.  See attached.”

“4.  Am a good citizen and work 2 jobs.  I have bought my own home and would like to return to school if I were able to go on my Montgomery Bill in which I paid for and lost.”

Applicant’s counsel/representative (AMERICAN LEGION) superceded the Applicant’s submitted issue and provided the following:

5.  “(Equity Issue) This former member which proffers that he was wrongfully separated opines that his General (Under Honorable Conditions) discharge is too harsh for his misconduct of record and thereby warrants the Board’s relief with recharacterization of his service period to fully Honorable.”  

6.  “(Equity Issue) This former member further requests that the Board include provisions of SECNAVINST 5420.174C, enclosure (1), Chapter 9, as it pertains to post-service conduct, in assessing the merits of this application.”

Documentation

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

Applicant application (DD Form 149) to BCNR, dtd Oct 13, 2002
U.S. Senator’s letter to the Applicant’s parents, dtd Aug 29, 1996
Copy of Applicant’s Special Court-Martial Supplemental Order No. 98-1700, dtd 
Oct 2, 1996
Applicant’s Parent letter to the U.S. Marine Corps, CO, 6th Marines, 2d MarDiv, dtd Nov 9,1998
Unsigned letter from SSgt B_, 6th Marines, 2d MarDiv to Applicant’s parent, dtd Apr 28, 1999
Copy of DD Form 214 (2 copies of Member – 4 and 1 copy of Member –1)

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: USMCR(J)		920618 - 930609	COG

Period of Service Under Review:

Date of Enlistment:  930610		Date of Discharge:  981002

Length of Service (years, months, days):

	Active:    05  03  23 (Doesn’t exclude confinement & appellate leave.)
	Inactive:  None

Age at Entry:  18			Years Contracted:  4 

Education Level:  12			AFQT:  50

Highest Rank:  LCpl

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  3.7 (6)			Conduct:  3.7 (6)

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM, Pistol Sharpshooter Badge, Rifle Sharpshooter Badge, SSDR (w/Star), LoA, AFSM

Days of Unauthorized Absence:  None

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

GENERAL (UNDER HONORABLE CONDITIONS)/COURT-MARTIAL, authority:  MARCORSEPMAN Par. 1105.

Chronological Listing of Significant Service Events:

941019:	NJP for violation of UCMJ, Article 81:  On 940929, conspired with 9 other Marines to assault LCpl P_, and did assault LCpl P_ on 940929; violation of UCMJ, Article 90:  On 940929, willfully disobeyed LtCol R_’s order to refrain from performing initiations on new members of the unit; violation of UCMJ, Article 128:  on 940929, assaulted LCpl P_ by striking him repeatedly on his bare abdomen with open hands.  
Awarded forfeiture of $466.00 per month for 2 months, restriction for 60 days, reduction to E-2 (Reduction to E-2 and forfeiture of $466.00 pay per mo for 2 months, suspended for 6 months).  Not appealed.

950102:	Acknowledged eligibility for but not recommended for promotion to Corporal for the January, February and March 1995 promotion period due to NJP on 941019.
	
960716:	Special Court-Martial (Trial dates – 12 & 16 July 1996).
	Charge I:  violation of the UCMJ, Article 81.
Specification:  Did, at Rodman Naval Station, Panama, on or about 14 Dec 1995, conspire to commit maltreatment.
	Charge II:  violation of the UCMJ, Article 93 (7 Specifications).
	Specification 1:  Did, at Rodman Naval Station, Panama, on or about 15 Nov 95, maltreat PFC C_.
	Specification 2:  Did, at Rodman Naval Station, Panama, on or about 15 Nov 95, maltreat PFC G_.
	Specification 3:  Did, at Rodman Naval Station, Panama, on or about 14 Dec 95, maltreat LCpl D_.
	Specification 4:  Did, at Rodman Naval Station, Panama, on or about 14 Dec 95, maltreat LCpl E_.
	Specification 5:  Did, at Rodman Naval Station, Panama, on or about 14 Dec 95, maltreat LCpl S_.
	Specification 6:  Did, at Rodman Naval Station, Panama, on or about 14 Dec 95, maltreat LCpl P_.
	Specification 7:  Did, at Rodman Naval Station, Panama, on or about 14 Dec 95, maltreat LCpl D_.
Findings:  to Charge I and specification 1 thereunder - guilty.  
To Charge II and specifications 1 through 6 thereunder - guilty; Specification 7 – not guilty.  
	Sentence:  Bad conduct discharge, confinement for a period of 90 days, forfeiture of $580.00 pay per month for a period of 3 months, reduction to E-1.
	CA 970128:  Sentence approved and ordered executed except for the BCD, but the execution of that part of the sentence pertaining to confinement in excess of 60 days is suspended for period of 12 months from the date of trial, at which time, unless sooner vacated, it will be remitted without further action.
	
960716:	To confinement, sentence of SPCM.

960904:	From confinement.

960905:	To appellate leave.

970124:	Applicant defense counsel requested clemency, in that the bad conduct discharge be suspended for 12 months and consider administrative separation instead.

971110:	NMCCCA:  Affirmed findings and sentence. 

980128:	NMCCCA:  Affirmed findings, however, affirm only so much of the sentence approved below consisting of a reduction to pay grade E-1, confinement for 2 months (confinement in excess of 45 days suspended), and forfeiture of $550 pay per month for 2 months.  The bad conduct discharge is disapproved and set aside.

980331:	NMCCCA:  Affirmed findings; however, affirm only that part of the sentence approved below that includes a reduction to pay grade E-1, forfeiture of $250.00 pay per month for 3 months, and confinement for 90 days (confinement in excess of 60 days suspended).  The bad-conduct discharge is set aside.

980624:	NMCCCA:  Case again before court as a result of our grant on 22 Dec 97 of the appellant’s motion for reconsideration due to lack of proper post-notification and opportunity by the appellant to submit assignments of error for review.  After considering the record, we conclude that the imposition of a punitive discharge is inappropriately severe.  While appropriate punishment is certainly warranted for these offenses, the appellant’s forthright acknowledgement and acceptance of responsibility for his wrongdoing, the nature of the maltreatment in this case and the extent of the appellant’s participation in it, and the favorable testimony of his superiors as to his general military character and performance militate against approval of the bad-conduct discharge.  Upon reconsideration, prior decision vacated, affirming the findings and only so much of the sentence, as approved on review below, as provides for confinement for a period of 90 days, forfeitures of $580.00 pay per month for 3 months, and reduction to paygrade E-1.  Record of trial returned to the Judge Advocate General of the Navy for appropriate administrative review and remedial action, as may be required.

981002:	SSPCMO:  In accordance with the NMCCMR decision of 24 Jun 98, the bad conduct discharge is set aside.  The findings of guilty affirmed, it has been administratively determined that the member will be separated with a general discharge (under honorable conditions).

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19981002 under honorable conditions (general) as the result of a special court-martial action.  Upon appellate review, the sentence was disapproved and the bad conduct discharge was set aside (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 characterization was proper and equitable but that the narrative reason for separation was improper. (D and E).

Issues 1 and 5.  When a Marine’s service has been honest and faithful, it is appropriate to characterize that service as honorable.  A characterization of service of under honorable conditions (general) 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 was marred by award of nonjudicial punishment (NJP) on one occasion and a special court-martial.  The Applicant’s conduct, which forms the primary basis for determining the character of his service, reflects his disobedience of the orders and directives which regulate good order and discipline in the naval service, and falls short of that required for an honorable characterization of service.  An upgrade to honorable is inappropriate.  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.  Relief denied.

Issue 2.  The Applicant may have remained on active duty beyond the length of his original enlistment had he not been the subject of a special court-martial.  The Applicant’s bad conduct discharge was set aside, but the finding of guilt was affirmed throughout the appellate review process.  Because the punitive discharge awarded at the Applicant’s court-martial was set aside by the U.S. Navy-Marine Corps Court of Criminal Appeals, the narrative reason directed by the separation authority was improper and inequitable.  Marines who are placed on appellate leave and whose punitive discharge is set aside are normally administratively separated for misconduct prior to their expiration of active service.  At the time that the separation authority directed the Applicant’s administrative separation under honorable conditions (general), the Applicant had been on appellate leave over one year beyond his expiration of active service (EAS).   Marines who are being processed for administrative separation cannot be held on active duty beyond their EAS.  Therefore, the Board found that the Applicant’s narrative reason for separation should be changed to expiration of active service.  Relief to the narrative reason for separation is granted.

Issue 3.  The Board’s regulations limit its review to a determination on the propriety and equity of the discharge.  Therefore, the Board can take no action nor provide any assistance concerning the Applicant’s request to have personal property returned to him.

Issues 4 and 6.  The Applicant’s discharge characterization accurately reflects his service to his country.  Normally, to permit relief, an error or inequity must have existed during the period of enlistment in question.  No such error or inequity is evident during the Applicant’s enlistment.  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 81, conspiracy; Article 93, maltreatment of subordinates; 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