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

 ex-Pvt, USMC
Docket No. MD03-00943

Applicant’s Request

The application for discharge review was received on 20030502.  The Applicant requests the characterization of service received at the time of discharge be changed to general/under honorable conditions.  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 20040401.  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:

1.  “To Whom it May Concern,

I would first like to thank you for taking time review my discharge.  In 1995 I brought shame upon myself and country when I was discharged from the Marine Corps.  I did not fulfill the promise that I made to the Corps. I have no excuses that make this action acceptable.  I did have problems that I didn’t know how to face, my fiancée was dying of a lung disease and was hospitalized, and that’s were I was during my absence.  This was not brought up in my trial I didn't think it was nesscary to live through all this again. I believe that this was not any reason to do what I have done.  It was childish and lacked the responsibility that was taught to me by my leaders.  I did not notify my command on the problems I was facing.  I took it upon myself to act.  I turned myself back in to my Command both times.  The reason I am taking action today on this matter is because I want to RE-ENLIST I have a Recode 4 and I was told I have to change my discharge first.  I would like to have the chance to make this right with my Country,God,Corps,and Myself.  There has not been one day that has past that I haven’t regretted the discussions I made.  I DESERVE a bad conduct discharge that I was given in my trial, and wish that I could come back and earn an Honorable discharge without changing this one.  Under any other circumstances I would not ask for what I deserved to be changed, but I hope and pray that you will give me the opportunity to give bake the time I promised my Country, and Corps. My dad is a Marine during the Vietnam Era, and my brother is currently a SSGT and has served since 1989.  I need this more than ever to make this thing right.  It was probably settled and forgotten as soon as my trial was over for the Marines, but that was just the beginning of guilt and hurt that for me. Although the Marines probably do not need me anymore I would still like to have the opportunity to serve them the Honorable way. I thank you for your time again and hope that you will grant me one big favor and help me make this right.” “I would like to let you know what kind of Marine I was while in service. I never once was in any trouble no page 11,office duty or any disciplinary actions.  Was liked by all my fellow Marines and had the greatest time of my life had no outstanding performances, but never had any negative problems either.  I was an assaultman 0351 in 2nd Battalion 8th Marines, Echo Company, Weapons Plt. After my discharge I received the Lord Jesus Christ as my personal Savior, and joined a local Bible believing church also volunteered my time telling inmates at the N.C.State Prison about my experiences with going the wrong way in life, and were I found peace, and happiness in the Lord.May I add I have been in no trouble since being released from the Marines that was the only time in my life, and I ask that you would please consider letting me fix this mistake.

D_ W_ (Applicant)

(social security number deleted)”

Documentation

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

Character reference, dated April 25, 1995
Character reference, dated April 25, 1995
Applicant’s DD Form 214

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: USMCR(J)		920605 - 930531	COG

Period of Service Under Review:

Date of Enlistment:  930601		Date of Discharge:  960516

Length of Service (years, months, days):

	Active:    02  11  16	Does not exclude lost time
	Inactive:  None

Age at Entry:  18			Years Contracted:  4

Education Level:  12			AFQT:  33

Highest Rank:  LCpl

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  3.4 (5)			Conduct:  2.4 (7)

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM

Days of Unauthorized Absence:  319

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:

950325:	Applicant to confinement.

950426:	Applicant from confinement.

950426:	Special Court-Martial.
	Charge I:  violation of the UCMJ, Article 86 (2 specifications):
	Specification 1: Unauthorized absence from 0700, 940321 until 1200, 941202 (251 days/surrendered).
	Specification 2: Unauthorized absence from 1200, 950117 until 1700, 950325 (68 days/surrendered).
	Findings: to Charge I and specifications thereunder, guilty.
	Sentence: Forfeiture of $250.00 per month for 2 months, confinement for 60 days, reduction to Pvt, and a bad conduct discharge.
	CA 951029:  Sentence approved and ordered executed except for the BCD.  But the execution of that part of the sentence extending to confinement in excess of 32 days is suspended for a period of 12 months from the date the sentence was adjudged at which time unless sooner vacated, the suspended part of the sentence will be remitted without further action.

950426:	Applicant waived review by Naval Clemency and Parole Board.

950427:	To appellate leave.

960308:	NMCCMR:  Affirmed findings and sentence.

960516:	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 19960516 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 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.  

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