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

 ex-Pvt, USMC
Docket No. MD03-00748

Applicant’s Request

The application for discharge review was received on 20030319.  The Applicant requests the characterization of service received at the time of discharge be changed to honorable.  The Applicant requests a personal appearance hearing before the Board in the Washington National Capital Region.  The Applicant did not list any 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 review prior to any personal appearance hearing.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20040224.  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 stated

Applicant’s issues, as stated on the application:

“Dear D.R.B.
The following issues are the reasons why my discharge should be upgraded to
Honorable.

1)  My ability to serve was impaired because of marital and financial problems:
3 weeks before graduation at Parris Island my wife, Jennifer, who was pregnant at the time that she had been evicted from her parent’s home, informed me. With no temporary place to stay and no money to find one, I requested permission to leave and take care of this problem. My request was denied, and was told to wait until graduation, which was only 2 weeks away. After graduation I came home and spoke with my recruiter and asked him for advice on what to do. He tried to speak with my commanding officer, and my request was denied, so I was told. I was prepared to return, but my wife had a miscarriage due to the high degree of stress. I knew that the most important thing for me was to take care of my wife and give her a place to live. By then my return date to Camp LeJeune was way over due. I was too scared to find out what would happen to me if I came back.

2)  Under current standards I would not receive the type of discharge I did:
I think going to Boot Camp was the hardest thing I have ever done. Ever since I was a child, being in the military has always been my dream. My parents always tried to keep me away from it, and that is why one day I just walked into the recruiters office and said to him “ I want to be a Marine” During boot camp me and 61 other recruits wondered why we were there being treated like we had never been treated before. I was scared like everyone else but I gave it my best to make it through, and that is why I ended up being part of the top ten graduates in the platoon. I was proud to have earned the title United States Marine! In my mind I know that the only reason why I received a bad conduct discharge is because I took care of my personal family problems .If that problem was not present at the time under current standards I would not have received the type of discharge I did.
3)  Clemency is warranted because it is an injustice for me and my family to continue to suffer the consequences of my bad discharge.
After coming home from boot camp, I have done whatever is possible to take care of my family. I have always worked and went to school so I can improve myself and find a better job. I have applied for a variety of different jobs, but for some reason which I believe is my bad discharge, I have been denied. No matter what I have always tried to do better. I have been doing construction for the same company for the past 5 years. In the process of raising 2 children, I have managed to purchase a home and 2 new vehicles and have provided my family with the necessities of everyday life. I have never been in trouble with the law. All I want is to give the best to my family and I know that having to suffer the consequences of my discharge has been holding me back from acquiring a better job.

I am writing this letter to explain the 3 major issues that have caused me to have a bad conduct discharge. I would hope that you will take these issues into consideration while waiting for a scheduled hearing from the D.R.B. If you should need more information or have any questions please feel free to contact me at the below address:

V_ Z_ (Applicant)
(address deleted)
(Telephone number deleted)

Thank you for your time and consideration.

Sincerely,
V_ Z_ (Applicant)”

Documentation

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

Applicant’s DD Form 215
Applicant’s DD Form 215
Letter from Applicant, dated August 8, 2003
Applicant’s DD Form 214 (2)
Letter from spouse, dated March 2, 2003
Mortgage deed
Tax returns for 1999, 2000, 2001
College transcripts
Driving record for the past 6 years
Birth certificate for daughter
Birth certificate for daughter
Twenty pages from Applicant’s service record

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: USMCR(J)		940308 - 940530	COG

Period of Service Under Review:

Date of Enlistment:  940531		Date of Discharge:  951024

Length of Service (years, months, days):

	Active:    01  04  24	Does not exclude lost time
	Inactive:  None

Age at Entry:  23			Years Contracted:  4

Education Level:  12			AFQT:  43

Highest Rank:  PFC

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  4.4 (1)			Conduct:  2.2 (2)

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM

Days of Unauthorized Absence:  188

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:

941024:	Applicant declared a deserter.

950306:	Applicant from desertion and to pretrial confinement.

950323:	Applicant from pretrial confinement.

950323:	Special Court-Martial.
	Charge I:  violation of the UCMJ, Article 86:
	Specification: Unauthorized absence from 0001, 940831 to 1800, 950306 (185 days/apprehended).
	Findings: to Charge I and specification thereunder, guilty.
	Sentence: Forfeiture of $500.00 per month for 2 months, confinement for 2 months, reduction to Pvt, and a bad conduct discharge.
	CA 950427:  Sentence approved and ordered executed except for the BCD.  Confinement in excess of 35 days is suspended for 12 months.

950814:	NMCCMR:  Affirmed findings and sentence.

951024:	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 19951024 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).  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 1-3.  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, statements and documentation provided for review absent 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