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

 ex-PVT, USMC 
Docket No. MD03-00957

Applicant’s Request

The application for discharge review was received on 20030505.  The Applicant requests the characterization of service received at the time of discharge be changed to honorable or general/under honorable conditions.  The Applicant requests a documentary record discharge review.  The Applicant did not list any representative on the DD Form 293.  In the acknowledgement letter the Applicant was informed that he was approaching the 15 year point for review by this Board and was encouraged to attend a personal appearance hearing in the Washington, D. C. area.  The Applicant did not respond.

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/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.  To whom it may concern:

This letter finds me in pretty-good spirit.  I’ve set my goals and with your help I’ve got a good chance achieving them.  I’m requesting an upgrade on a Bad Conduct Discharge I received back in March of 1990.  During the past 13 years I’ve managed to keep out of trouble, in the civilian world.  Therefore by doing that I was assured in a few years my Discharge would be upgraded (automatically) I assumed. Over the years I feel as though I’ve paid my dues back to society.  From being involved in churches, coaching youth sports, or volunteering my time at the local Y.M.C.A. as I’ve promised the military I would.  I’ve kept a pretty-clean record (criminal) over the years and hope you’ll strongly consider my request for an upgrade, I’m being accepted in the Correctional Recruit Program since Sept of 94.  Having a Dis-Honorable or Bad Conduct Discharge won’t qualify me.  All I need is a chance to make my life much better, just a chance to rebuild my life and pride.  Thanks D_ D_

I know what I did was wrong back then and I would just like the opportunity to restore my pride and self esteem by doing positive with my life…”

Documentation

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

Copy of DD Form 214
Handwritten Letter from Applicant dated March 3, 2002 (2 pages)
Acceptance Letter from VoTech Center, Evening Corrections Recruit Program
Employment Verification Letter dated February 28, 2003
Reference Letter from YMCA dated February 25, 2003

PART II - SUMMARY OF SERVICE

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

	Active:   USMC		None
	Inactive: USMCR(J)		880126 - 880302	COG

Period of Service Under Review:

Date of Enlistment:  880303		Date of Discharge:  900310

Length of Service (years, months, days):

	Active:    01  10  17
	Inactive:  None

Age at Entry:  20			Years Contracted:  4 

Education Level:  12			AFQT:  57

Highest Rank:  PVT

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  3.7 (3)			Conduct:  3.7 (3)

Military Decorations:  None

Unit/Campaign/Service Awards:  Rifle Marksman 

Days of Unauthorized Absence:  49 

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:

890217:	Special Court-Martial.
	Charge I:  violation of the UCMJ, Article 86: UA from unit 880705 to 880824 (49 days).
	Findings:  to Charge I and specification 1 thereunder, guilty.  
	Sentence:  Bad conduct discharge.
	CA 890608:  Sentence approved and ordered executed except for the BCD.

890303:	To appellate leave.

890816:	NMCCMR:  Affirmed findings and sentence.

891031:	NC&PB denied clemency and restoration.

900208:	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 19900310 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.  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 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 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