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

 ex-PVT, USMC
Docket No. MD03-01089

Applicant’s Request

The application for discharge review was received on 20030605.  The Applicant requests the characterization of service received at the time of discharge be changed to honorable.  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 20041105.  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:

At the time of the bigomy charges I was also charged with being absent without leave witch is not correct since I had leave papers on file and authoried by Lt f___ and Ltc M___.  Futhermore it was recommended by my Rep from Daylestown, PA that I should be given confinement, and not separated from the service because of my service to the military.  The congressman felt that is a stupid mistake thinking that I could get divorced in mexico but something minor compared to the LT taking a military vehicle to a civilian bar in Yuma and getting a DUI.

I feel that in the 4 years since these immature acts I have more than served my punishment to the marine corps and the country, and feel my discharge should be upgraded.  If I had it all to do over I would.

The only reason the charges were brought is because brought the divorce up to the admin section.

I am requesting the change so I can become a state patrol man.

I do not consider getting Mexican divorce and getting remarried Bigomy since there was intent to decive anyone, although after the fact I see that it was wrong.  I still feel that the punishment does not fit the crime.  I was the person that brought this to attention of the command. , if there was any intent to decive the Marine Corp I would not of brought this to anyone’s attention.  Futhermore, I feel the Command was taking out a personal vendetta out against myself, around the same time busted from Corporal to Lance Corporal for allowing my Auto insurance to lapse.

Next, I was charged with being Out of bound while being on Alert which at the time I wa on leave from which was authorized be the Lt F___, and the Commanding Officer of 3RD LAAD Battalion.

Documentation

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

Copy of DD Form 214

PART II - SUMMARY OF SERVICE

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

	Active:   USMC		None
	Inactive: USMCR(J)		940815 - 941127	COG

Period of Service Under Review:

Date of Enlistment:  941128		Date of Discharge:  991115

Length of Service (years, months, days):

	Active:    04  10  22
	Inactive:  None

Age at Entry:  22			Years Contracted:  4 

Education Level:  12			AFQT:  56

Highest Rank:  Cpl			MOS:  7212

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  4.4 (6)			Conduct:  4.4 (6)

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM, REB 

Days of Unauthorized Absence:  None 

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:

950427:	Counseled for deficiencies in performance and conduct.  [Your academic deficiencies in the LAAD Gunner Crs.  Your course average has fallen below the required 86%.  You have failed 2 out of 2 exams and currently hold a 74%.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

950511:	Counseled for deficiencies in performance and conduct.  [Your academic deficiencies in the LAAD Gunner Crs.  You have failed 3 out of 6 exams.  Due to this deficiency you have been dropped from the course and reassigned to LAAD Gunner Crs 6-95.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

950613:	NJP for violation of UCMJ, Article 86: Failed to be at his appointed place of duty, MCDet, USASDC, Ft Bliss, TX from 0645 to 2330, 950605 and failed to obey DetO 1050.1F in that he did not sign out on liberty in the liberty log book.
	Award:  Forfeiture of $150.00 pay per month for 2 months (suspended for 2 months), restriction for 30 days.  No indication of appeal in the record.

950619:	Counseled for deficiencies in performance and conduct.  [Failure to adhere to Marine Corps rules and regulations; specifically your failure to abide by Detachment Orders pertaining to liberty procedures.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

950713:	Counseled for deficiencies in performance and conduct.  [Your lack of effort resulting in being a consistent run drop during physical training]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

970714:	Counseled for deficiencies in performance and conduct.  [Your financial responsibilities and obligations as a Marine.  You must ensure that you budget your funds and know how to balance your bank accounts appropriately.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

971007:	NJP for violation of UCMJ, Article 92: Did violate CVC 16028 and BO P5000.2H par 2300 by failing to produce automotive insurance, violation of UCMJ Article 107: Did make a false official statement on 970923.
	Award:  Forfeiture of $553.00 pay per month for 2 months (suspended for 6 months), restriction and extra duty for 45 days, reduction to E-3.  No indication of appeal in the record.

971216:	Counseled for deficiencies in performance and conduct.  [Your financial responsibility to unit, payment of car note.  You are voluntarily stopping allotment on fore-mentioned privately owned vehicle.  You will be responsible for the payment of said not.  You are advised that failure to meet your financial obligation will result in a violation of Article 134 Debt, dishonorably failing to pay of the UCMJ.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

980212:	Special Court-Martial.
	Charge I:  violation of the UCMJ, Article 90,
	Specification: On or about 9709, willfully disobeyed a lawful order.  Charge II: violation of the UCMJ, Article 107, Specification: On or about 9709, with intent to deceive make a false statement.
	Charge III:  violation of the UCMJ, Article 123a, Specification: On or about 9706 to 9708, make and utter checks without sufficient funds.  Charge IV: violation of the UCMJ, Article 134: (4 Specifications), Specification 1: On or about 970823 to about 971229, dishonorably fail to pay said debt to Gebs Furniture; Specification 2: On or about 970501 to about 971229, dishonorably fail to pay said debt to Harris Originals, and charge and the Consumer Adjustment Corporation; Specification 3: On or about 970806 to about 971022, wrongfully cohabit with S___ C. L__; Specification IV: On or about 970915, wrongfully and bigamously marry S__ C. L___.
	Findings:  to Charge I and specification 1 thereunder, guilty.  To Charge II and specification thereunder, withdrawn.  To Charge III and specification thereunder, withdrawn.  To Charge IV and specification 1 and 2 thereunder, guilty, to specification 3 thereunder charge IV, withdrawn, to specification 4 thereunder charge IV, guilty.
	Sentence:  Confinement for 45 days, reduction to E-1, and a bad conduct discharge.
	CA 980609:  Sentence approved and except for that part of the sentence extending to a bad conduct discharge, will be executed.  Execution of that part of the sentence adjudging confinement in excess of 30 days is suspended for 12 months from the date of this action at which time, unless sooner vacated, the suspended part of the sentence will be remitted without further action.  Automatic forfeiture have been deferred until the date of this action.  Further applicable forfeiture will be waived for six months from the date of this action and shall be paid to Mrs C___ and K___ M__, the spouse and daughter of the accused.

980212:	To confinement, Sentence of SPCM.

980213:	Waiver of Clemency Review.

980308:	From confinement, to duty.

980308:	To appellate leave.

990610:	NMCCMR:  Affirmed findings and sentence.

991115:	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 19991115 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.  The Applicant contends that “in the 4 years since these immature acts I have more than served my punishment to the Marine Corps and the country”.  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.  The NDRB is authorized to consider outstanding post-service factors in the recharacterization of a discharge, to the extent that such matters provide a basis for a more thorough understanding of the Applicant’s performance and conduct during the period of service under review.  Verifiable proof of post-service accomplishments must be provided in order for the Applicant to claim post-service conduct and behavior as a reason to upgrade a less than honorable discharge.  At this time, the Applicant has not provided sufficient documentation for the Board to consider an upgrade.  Relief denied.

Issue 2.  The Applicant is requesting an upgrade so that he can become “a state patrol man”.   The Board has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities.  Further, with respect to a discharge adjudged by a court-martial case, the action of the NDRB is restricted to upgrades based on clemency.  Clemency is an act of leniency that reduces the severity of the punishment imposed.  After a thorough review of the Applicant’s record, issues submitted, and post service accomplishments, the Board determined that clemency was not warranted.  

Issue 3.  The Applicant contends that the “punishment does fit the crime.”  In response to the Applicant’s issue, relevant and material facts stated in a court-martial specification are presumed by the NDRB to be established facts.  With respect to a discharge adjudged by a court-martial case, the action of the NDRB is restricted to upgrades based on clemency.  Clemency is an act of leniency that reduces the severity of the punishment imposed.  After a thorough review of the Applicant’s record and issues submitted, the Board determined that clemency was not warranted.  

Issue 4.  The Applicant alleged that the  “Command was taking out a personal a personal vendetta out against myself.”   The record, however, contains no evidence of any wrongdoing by anyone in the discharge processing.  The Board presumes regularity in the conduct of governmental affairs in the absence of persuasive evidence to the contrary.  As such, this Board presumed that Applicant’s discharge was regular in all respects.  Relief denied.  

The Applicant remains eligible for a personal appearance hearing, provided an application is received, at the NDRB, within 15 years from the date of discharge.  The Applicant can provide documentation to support any claims of post-service accomplishments or any other evidence related to his discharge at that time.  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 010831. 

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 90, willfully disobeying a lawful order and UCMJ, Article 134, bigamy.

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