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

  ex-PFC, USMC
Docket No. MD03-00814

Applicant’s Request

The application for discharge review, received 20030402, requested that the characterization of service on the discharge be changed to honorable.  The Applicant requested a personal appearance hearing discharge review before the Board in the Washington National Capital Region.  The Applicant listed Civilian Counsel as his representative on the DD Form 293.

Decision

A personal appearance hearing was conducted in Washington, D.C. on 20031020.  After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, the NDRB discerned no impropriety or inequity in the characterization of the Applicant’s service at the time of his discharge.  However, the NDRB found that the Applicant’s case warranted an act of clemency.  The Board’s vote was unanimous that the character of the discharge shall change and unanimous that the narrative reason for the discharge will remain the same.  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, as stated:  

“1.  The issue presented in this Application is whether or not my Bad Conduct Discharge from the U.S. Marine Corps, which was adjudged at a special court martial on 8 August 1990, should be upgraded to Honorable.  I previously made application for upgrade to an Honorable Discharge before this Board (Docket No. MD92-01148).  However, at the time I requested relief, my discharge had recently been adjudged and the Board properly found that I failed to introduce new evidence of sufficient merit to extenuate, mitigate, or excuse the misconduct of my record, which was a 306 day unauthorized absence.

It has how been more than 12 years since my discharge was adjudged.  At the time of my court-martial, I was 19 years old and immature.  Before the unauthorized absence for which my BCD was adjudged, I had a clean record prior to and during my brief period of service in the U.S. Marine Corps.  Based on its inherit statutory authority and long-standing principles and equity and clemency, this Board has the power to grant the requested relief.  Within the supporting documentation provided in paragraph 7 (a) through (w) above (Documents 1 through 25), is substantial evidence of exemplary post-service conduct from members of my community.  I respectfully call the Board’s attention to the statement of witnesses, which comment favorably upon my civil involvement, volunteer service in the church and community, my reputation, and good citizenship.  Importantly, as noted by my civilian counsel, who is a retired U.S. Marine Corps Lt. Colonel and Military Judge, members of my community support my Application because I want to serve and they need me to serve in the law enforcement field.  Unless the relief requested is granted, under Tennessee law, I will not be able to so serve my fellow citizen.  Accordingly, as noted by my civilian counsel, I ask the Board to consider the issue in this case to be one of equity regarding the character of my discharge.  In particular, I ask the Board to consider whether, based on my prior record of service before the BCD was adjudged, and more importantly, based on my post-service conduct and the needs of my community, my discharge should be upgraded.”

Documentation

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

Cover Letter from D_ L. B_, Lt. Colonel (USMC Ret.) Civilian Counsel (2 pages)
Statement from D_ L. B_, Lt. Colonel (USMC Ret.) Civilian Counsel dated March 7, 2003 (5 pages)
Statement from Applicant (3 pages) 
Copy of promotion to PFC (meritoriously) certificate dated June 23, 1989
Copy of Certificate as Platoon Outstanding Marine during recruit training
Statement from B_ W_, Pastor, Blondie Church of God, dated December 18, 2002
Statement from B_ G. C_, Minister, Pine View Church of Christ
Statement from K_ R. T_, County Executive, Lewis County, Tennessee dated December 18, 2002
Statement from Officer S_ L_, Hohenwald Police Department, dated December 18, 2002
Statement from R_ B_, Chairman, Cornerstone Health System dated December 17, 2002
Statement from State Representative, Dr J_ H_, dated December 17, 2002
Statement from M_ C_, Chairman, Lewis County School Board
Statement from D_ H_, City of Hohenwald Police Department, dated December 16, 2002
Statement from Officer A_ B_, City of Hohenwald Police Department, dated December 16, 2002
Statement from J_ M_, Lewis County High School, dated December 16, 2002
Statement from D_ C_, Circuit Court Clerk, Lewis County, Tennessee dated December 16, 2002
Statement from S_ C_, Lewis County Clerk, dated December 13, 2002
Statement from R.E. A_, Operations Area Manager, Lucent Technologies dated December 12, 2002
Statement from T_ K. W_, Superintendent of Schools, Lewis County, Tennessee dated December 19, 2002
Statement from B_ C_, Criminal Investigator, 21st Judicial District, Attorney General’s Office dated June 29, 2001
Statement from Sergeant L_ J_ H_, City of Hohenwald Police 
Statement from S_ L_, Chief of Police, City of Hohenwald, Tennessee dated June 28, 2002
Statement from Sheriff D_ K_, Sheriff, Lewis County, Tennessee dated January 12, 1998
Statement from C_ C_, Lewis County Trustee, dated January 7, 1998
Statement from W. C. T_, Captain, Tennessee Highway Patrol, Lawrenceburg District, Tennessee, dated January 2, 1997
Statement from M_ R. M_, Supply NCO, DET 1 771 DS
Letter to R_ R_ from President, M_ Methodist College, dated January 24, 2003, along with transcripts of Martin Methodist College

PART II - SUMMARY OF SERVICE

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

	Active:   USMC		None
	Inactive: USMCR(J)		19890222 - 19890326		COG

Period of Service Under Review:

Date of Enlistment:  890327		Date of Discharge:  911008

Length of Service (years, months, days):

	Active:    02  06  12
	Inactive:  None

Age at Entry:  18			Years Contracted:  5

Education Level:  12			AFQT:  69

Highest Rank:  PFC

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  5.0 (1)			Conduct:  2.5 (2)

Military Decorations:  None

Unit/Campaign/Service Awards:  None 

Days of Unauthorized Absence:  306 

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:

891006:	Declared a deserter.

900710:	Applicant surrendered to military authorities on 900709 (1230) at I & I, Company I, 3d Battalion.  Returned to military control 900709 (1230).  Transferred to CO, HHS, MCAS, CPNC.

900807:	Applicant waived clemency review.

900808:	Special Court-Martial.
	Charge I:  violation of the UCMJ, Article 86: UA 890906-900709 (306days/S).
	Findings:  to Charge I and specification thereunder, guilty.
	Sentence:  CHL for 2 months, forfeiture of $482.00 pay per month for 2 months, reduction to E-2, and a bad conduct discharge.
	CA 910115:  Only so much of the sentence as provides for a BCD, CHL for 55 days, forfeiture of $482.00 pay per month for 2 months, and red to Pvt is approved, and except for the bad conduct discharge, will be executed.

901008:	To appellate leave.

910404:	NMCCMR:  Affirmed findings and sentence.

910823:	SSPCMO:  Article 71c, UCMJ, having been complied with, Bad Conduct discharge ordered executed.

930121:	NDRB documentary record review Docket Number MD02-01148 conducted.  Determination:  discharge proper and equitable; relief not warranted.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19911008 with a bad conduct discharge which was the sentence adjudged by a special court-martial that was determined to be legal and proper, upon appellate review.  The sentence was approved and the discharge ordered executed 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).

Issue 1:  With respect to a discharge adjudged by a court-martial, 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 appreciates the Applicant’s efforts to improve his life and his involvement in his local community’s counter narcotic efforts and encourages him to continue his participation.  However, the Applicant did not provide sufficient verifiable documentation of good character and conduct to fully mitigate his long period unauthorized absence.   The Board’s vote was unanimous 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 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