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

  ex-Pvt, USMC
Docket No. MD03-00895

Applicant’s Request

The application for discharge review was received on 20030416.  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 did not list any representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20040303.  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.  “ I do hereby ask that in your infinite wisdom you forgive my immature impulsive action of leaving for which I cannot ever amend or change and at this time consider my humble request for an upgrade to my discharge.  Although my infraction has put a permanent smudge on my career as a good soldier, I hope that my accomplishments as a soldier do not go un-noticed and bear some considerations.

    With your forgiveness and permission, one day I would like to be a good soldier to my country again.  Along with me, my country is suffering right now.  My fellow soldier is standing proud and explifying what a good soldier is and what our country stands for.  May I one day shine in their light and they shine in mine.

    I respectfully and earnestly await your reply.”

Documentation

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

Copy of DD Form 214 from previous enlistment
        Nineteen pages from Applicant’s service record
        Letter from Applicant
        Letter from F_ J. M_
        Test Scores dated February 2, 1995
        Letter of congratulations for Arborist Certification
        Certificate of completion for landscape seminar
        Certificate of completion for horticultural seminar
        Employee of the Month for October 1997
        Certificate for Certified Arborist
        Letter of congratulations for passing requirements to be a Certified Tree Worker 
        Certified Tree Worker policy extract (2 pp.)
        Certified Tree Worker examination certificate
         Certificate of completion dated December 15, 1999
         Newspaper article copy

PART II - SUMMARY OF SERVICE

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

	Active:   USMC		800724 - 831129	HON
	Inactive: USMCR(J)		800212 - 800723	COG

Period of Service Under Review:

Date of Enlistment:  831130		Date of Discharge:  920916

Length of Service (years, months, days):

	Active:    02  00  28  (Does not include UA period and appellate leave)
	Inactive:  None

Age at Entry:  21			Years Contracted:  4 

Education Level:  12			AFQT:  40

Highest Rank:  Cpl

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  4.6 (16)			Conduct:  4.1 (17)

Military Decorations:  None

Unit/Campaign/Service Awards:  SSDR, MM, GCM, NDSM, CoA, LoA 

Days of Unauthorized Absence:  1985 

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:

910508:	Special Court-Martial.
	Charge I:  violation of the UCMJ, Article 85: On 850729 without authority and with intent to remain away therefrom permanently, absent from unit until apprehended on 910104.
	Findings:  Guilty to the lesser included offense of Article 86, UCMJ excepting the words, “and with intent to remain away therefrom permanently.”  Of the excepting words, NG; of the specification as excepted, Guilty.  
	Sentence:  Fine of $500.00, restriction for 2 months, reduction to E-1, confinement for two months and a bad conduct discharge.
	CA 911008:  Sentence approved and ordered executed except for the BCD.  Confinement suspended for 12 months.
	
910530:	To appellate leave.

920117:	NMCCMR:  Affirmed findings and sentence.

920730:	NC&PB denied clemency and restoration.

920916:	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 19920916 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).  

Issue 1.  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 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.  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 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.  

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