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

  ex-PVT, USMC
Docket No. MD03-00956

Applicant’s Request

The application for discharge review was received on 20030508.  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 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:

My discharge was unfair and I believe that it should be upgraded.  The type of offenses that I was convicted of were very minor.  Usually this type of discharge is used for major offenses.  My prior records of service at other bases indicate that I always have demonstrated acceptable conduct My record of acts of merits, awards and promotions show I was generally a good service member.  I have always been a good citizen before and after my time of duty.  Since my discharge I have stayed out of trouble.  I have a good work history and am pursuing a degree.  By upgrading my discharge I will have a better chance at government jobs and will be able to get VA benefits.  I have attached my police record, my grades, and two character references.”

Documentation

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

Copy of DD Form 214
Criminal Record Check
Transcript (2 pages)
Employment Reference Letter dated March 10, 2003

PART II - SUMMARY OF SERVICE

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

	Active:   USMC		None
	Inactive: USMCR(J)		950323 - 950611	COG

Period of Service Under Review:

Date of Enlistment:  950612		Date of Discharge:  980507

Length of Service (years, months, days):

	Active:    02  09  28
	Inactive:  None

Age at Entry:  18			Years Contracted:  4 

Education Level:  11			AFQT:  69

Highest Rank:  PFC

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  3.7 (7)			Conduct:  4.0 (7)

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM 

Days of Unauthorized Absence:  6 

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:

960819:	Counseled for deficiencies in performance and conduct.  [Failure to perform assigned duties and follow proper procedures as instructed by your SNCOIC per established Supply SOP’s.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

960909:	Counseled for deficiencies in performance and conduct.  [Failure to conform to the UCMJ and substandard performance, i.e., dereliction of duty, disobedience to orders and the loss of DSSC card within your responsibilities.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

961102:	Counseled for deficiencies in performance and conduct.  [Failure to follow orders after being instructed on several occasions and not being recommended for promotion to LCpl for the month of November 96.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

961220:	NJP for violation of UCMJ, Article 86 (4 Specifications), Specification 1: UA from appointed place of duty, to wit: section formation 0730, 960927; 
Specification 2: UA from appointed place of duty, to wit: work section 1530, 961017; Specification 3: UA from appointed place of duty, to wit: Alpha Inspection 0700, 961104; Specification 4: UA from appointed place of duty, to wit: P.T. 0630, 961204.  Violation of UCMJ, Article 92: On or about 961204, did violate Sco10 1700.4C, to wit: consuming alcohol under the legal age to do so.
Awarded forfeiture of $150.00 pay per month for 1 month, restriction and extra duties for 14 days (suspended for 6 months), reduction to E-1 (suspended for 6 months).  Not appealed.

961220:	Counseled for deficiencies in performance and conduct.  [Failure to conform to Marine Corps Standards, specifically my recent NJP for violations of Articles 86x4, 92 of the UCMJ.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

970314:	Pre-trial restrictions from 970314 to 970314.
 
970317:	Pre-trial confinement from 970317 to 970409.

970409:	Special Court-Martial.
	Charge I:  violation of the UCMJ, Article 86: Did on or about 970205, without authority, absent himself from his unit, to wit: Marine Corps Communication-Electronics School, Twentynine Palms, California and did remain so absent until on or about 970211 (6 days/A).  Charge II:  violation of the UCMJ, Article 91: Having received a lawful order from CPL T. E. L_, U.S. Marine Corps, a noncommissioned officer, then known by the SNM to be a noncommissioned officer, to get back into the warehouse and see what LCpl wanted, an order which it was his duty to obey, did, on or about 970124, willfully disobey the same.  Charge III: violation of the UCMJ, Article 92:  Did on or about 970319, violate a general order, to wit: SECNAVINST 5300.28B paragraph 6b, dated 900711, by wrongfully possessing drug paraphernalia, to wit: a silver and green hashish pipe.  Charge IV: violation of the UCMJ, Article 112a: Did at an unknown location, between about 970205 and 970212, wrongfully use cocaine, a controlled substance, the use indicated by the presence of Benzoylecgonine in the body of PVT B_, when present for duty on or about 970224.
	Findings:  to Charge I thru IV and specifications thereunder, guilty.  
	Sentence:  Confinement for 23 days, and a bad conduct discharge.
	CA 971016:  Sentence approved and ordered executed except for the BCD.
	
970414:	To appellate leave.

971210:	NC&PB denied clemency, offered VA treatment.

980210:	NMCCMR:  Affirmed findings and sentence.

980507:	SPCMO:  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 19980507 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; Article 91, disobey the order of a NCO; Article 92, disobey a lawful order; and Article 112a, possession of drug paraphernalia.

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