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

  ex-Pvt, USMC
Docket No. MD03-01126

Applicant’s Request

The application for discharge review was received on 20030612.  The Applicant requests the characterization of service received at the time of discharge be changed to honorable.  The Applicant requests a documentary record 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 20040415.  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.  “I ask that you take all information submitted into consideration.  I know I did a stupid thing, but I was young.  I know that is not a good excuse, but I have changed and ask that you give me a second chance.

I have been and am very sick.  I have been diagnosed with Diabetes and neuropathy in my legs.  I do not tell you that for your sympathy, but to let you know that I really need help.

I will appreciate any help that I can get in upgrading my discharge.”

Documentation

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

Copy of DD Form 214
Letter of recommendation from P_ O_, Veterans Service Office
Letter from Applicant

PART II - SUMMARY OF SERVICE

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

	Active:    None
	Inactive: USMCR(J)		940624 - 950530	COG

Period of Service Under Review:

Date of Enlistment:  950531		Date of Discharge:  980527

Length of Service (years, months, days):

	Active:    02  11  27
	Inactive:  None

Age at Entry:  18			Years Contracted:  4

Education Level:  12			AFQT:  64

Highest Rank:  LCpl

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  4.4 (4)			Conduct:  4.4 (4)

Military Decorations:  None

Unit/Campaign/Service Awards:  SSDR, NDSM

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:
	
970708:	Special Court-Martial.
	Charge I:  violation of the UCMJ, Article 112a:  On or about 970418, wrongfully used marijuana.
	Findings:  to Charge I and specification 1 thereunder, guilty.  
Sentence:  Fine of $580.00, restriction for 2 months, reduction to E-1, confinement for 60 days, and a bad conduct discharge.
	CA 970908:  Sentence approved and ordered executed except for the BCD.  Confinement in excess of 30 days is suspended for 12 months.
	
970708:	To confinement, sentence of SPCM.

970731:	From confinement, to duty.

980227:	NMCCMR:  Affirmed findings and sentence.

980527:	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 19980527 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 offense for which the discharge was awarded.  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 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 112a, illegal use of drugs.

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