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

 ex-Pvt, USMC
Docket No. MD03-00740

Applicant’s Request

The application for discharge review was received on 20030320.  The Applicant requests the characterization of service received at the time of discharge be changed to general/under honorable conditions.  The Applicant requests a documentary record discharge review.  The Applicant listed the Veterans of Foreign Wars as the representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20040812.  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.  “WHILE SERVING IN THE UNITED STATES MARINE CORPS I USED POOR JUDGEMENT ON NUMEROUS OCCASIONS. I WAS INVOLVED IN SEVERAL FIGHTS AND ONE OF THOSE FIGHTS INVOLVED A NON-COMMISIONED OFFICER.  I KNOW NOW THAT MY BEHAVIOR WAS INAPPROPRIATE AND I APOLOGIZE FOR THE DISRUPTION I CAUSED TO THE MILITARY UNIT TO WHICH I WAS ATTACHED.  SINCE LEAVING THE MARINE CORPS I HAVE TURNED MY LIFE AROUND.  I AM A RESPONSIBLE FATHER.  AN ACTIVE MEMBER OF MY CHURCH AND MY COMMUNITY.  THE FACT THAT I HAD A SPECIAL COURT MARTIAL AND THAT I RECEIVED A BAD CONDUCT DISCHARGE FROM THE MARINE CORPS HAS BEEN A CONSTANT SOURCE OF SHAME AND HUMILIATION FOR ME SINCE 1990.  I HAVE TRIED TO MAKE UP FOR THE TROUBLE I CAUSED WHILE ON ACTIVE DUTY BY MAKING A POSITIVE DIFFERENCE IN MY COMMUNITY AND IN THAT REGARD I BELIEVE I HAVE ACHIEVED A GREAT DEAL OF SUCCESS.  I UNDERSTAND THAT IT IS ONLY POSSIBLE TO REQUEST A DISCHARGE UPGRADE FOR REASONS OF CLEMENCY.  PLEASE CONSIDER THIS APPLICATION AS MY FORMAL REQUEST FOR A DISCHARGE UPGRADE TO A GENERAL DISCHARGE UNDER HONORABLE CONDITIONS.  I REQUESTED MY DD-214 FROM THE PERSONNEL RECORDS DEPOT IN AUGUST OF 2002 AND IT HAS NOT YET ARRIVED.  IF YOU COULD I WOULD APPRECIATE IT IF YOU COULD TAKE THE NECESSARY ACTION TO ACQUIRE A COPY OF THAT DOCUMENT FOR USE IN THE PROCESS OF MAKING A DECISION REGARDING MY REQUEST.  PLEASE BELIEVE ME WHEN I TELL YOU THAT I HAVE LEARNED FROM MY MISTAKES AND THAT I PLAN TO LIVE THE REMAINDER OF MY LIFE IN A MANNER, WHICH WILL MAKE MY DAUGHTER PROUD OF ME AS A FATHER AND YOU PROUD OF THE FACT THAT YOU GAVE ME ANOTHER CHANCE TO HOLD MY HEAD UP HIGH AND BE PROUD OF MY SERVICE TO MY COUNTRY.  THANK YOU IN ADVANCE FOR YOUR TIME, EFFORT, CONSIDERATION AND COMPASSION IN THIS MATTER. I REALLY APPRECIATE IT!”

Additional issues submitted by Applicant’s representative (Veterans of Foreign Wars):

2.  “Applicant indicated above requested that Veterans of Foreign Wars act as counsel concerning his application.  His records were reviewed on July 14, 2004 and the following comments are hereby submitted.

We contend the Applicant is eligible for consideration to a CLEMENCY Discharge.  After a full review of the record it is noted he is a solid member of his community, has established community relationships within his community and shows remorse for his immaturity while on active service.

We refer this case to the Board for their careful and compassionate consideration and request the Applicant's discharge be reviewed to CLEMENCY.”

Documentation

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

Letter from Veterans of Foreign Wars service officer, dated November 5, 2002
Character reference, dated November 4, 2002
Job/character reference, dated November 2, 2002
Character reference, dated February 12, 2003
Character reference from Pastor, Metropolitan Baptist Tabernacle, dated February 4, 2003
Letter of recommendation, undated
Character reference, undated
Character reference, dated December 23, 2002
Copy of DD Form 214

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: USMCR(J)		870911 - 880208	COG

Period of Service Under Review:

Date of Enlistment:  880209		Date of Discharge:  930422

Length of Service (years, months, days):

	Active:    05  02  14 [Does not exclude lost time]
	Inactive:  None

Age at Entry:  20			Years Contracted:  4

Education Level:  12			AFQT:  35

Highest Rank:  Pvt

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  3.4 (4)			Conduct:  3.3 (4)

Military Decorations:  None

Unit/Campaign/Service Awards:  None

Days of Unauthorized Absence:  None

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:

880721:	NJP for violation of UCMJ, Article 91:
Specification: Violate Co 1stSgt’s not to have alcohol in barracks on 880717.
Awarded forfeiture of $140.00 per month for 1 month, restriction for 14 days.  Not appealed.

881205:	Special Court-Martial.
	Charge I: violation of the UCMJ, Article 90:
	Specification: Willfully disobey lawful command from Captain Y_ on 880805.
	Charge II: violation of the UCMJ, Article 92:
	Specification 1: Violate a lawful general order, to wit: Bde0 1700.2 dated 871116, by wrongfully consuming alcoholic beverages while under the legal drinking age on 880805.  (Guilty, by exceptions and substitutions which did not change the nature of the offense.)
	Charge III: violation of the UCMJ, Article 116:
	Specification 1: Participate in breach of the peace by wrongfully engaging in a public brawl on 880805.  (Withdrawn by the government.)
	Additional Charge I: violation of the UCMJ, Article 91:
	Specification 1: Disrespectful in language toward SSgt on 881008.  (Withdrawn by the government.)
	Specification 2: Disrespectful in language toward SSgt on 881008.
	Specification 3: Disobeyed lawful order from SSgt on 881008.
	Additional Charge II: violation of the UCMJ, Article 92:
	Specification: Violate lawful general order, to wit: BdeO 1700.2 dated 871116, by wrongfully consuming alcoholic beverages while under the legal drinking age.
Additional Charge III: violation of the UCMJ, Article 116:
	Specification: Participate in breach of the peace on 881008.
Additional Charge IV: violation of the UCMJ, Article 128:
	Specification 1 and 2: Assault SSgt and Sgt on 881008.
	Findings:  to Charge I and specifications thereunder, Charge II and the specification with exceptions and substitutions; Additional Charge I and specifications 2 and 3 thereunder, Additional Charge II and the Specification thereunder; and Additional Charge IV and the Specifications thereunder, were based upon the accused’s pleas of guilty.  The accused pled not guilty to the remaining Charges and Specifications thereunder.
Sentence:  Forfeiture of $400.00 per month for three months, confinement for 3 months, and a bad conduct discharge.
	CA 890328: Sentence approved and ordered executed except for the BCD.

881220:	Applicant waived right to NC&PB review.

890427:	Applicant declined treatment.

890511:	Applicant to appellate leave.

890522:	NMCCMR:  Affirmed findings and sentence.

890821:	SSPCMO:  Article 71c, UCMJ, having been complied with, Bad Conduct discharge ordered executed.  Commanding Officer, Separation Company, Headquarters Battalion, Marine Corps Base, Camp Pendleton is directed to discharge with a BCD no later than 890921.

930422:	Applicant discharged with a bad conduct discharge as a result of a court-martial.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19930422 with a bad conduct discharge which was the sentence adjudged by a properly convened special court-martial.  That sentence was subsequently approved by both the convening and appellate review authorities (A and (B).  The Board presumed regularity in the conduct of governmental affairs (C).  

Issues 1 and 2:  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 evidence of record did not contain sufficient mitigating or extenuating factors to offset the seriousness of the offenses for which the discharge was awarded.  In addition, the reason for discharge, convicted by special court-martial, is most appropriate.  Relief denied.

The Applicant remains eligible for a personal appearance hearing, provided an application is received, at the NDRB, within 15 years from the date of discharge.  The Applicant can provide documentation to support any claims of post-service accomplishments or any other evidence related to his discharge at that time.  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 [ e.g., 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.  

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