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

 ex-Pvt, USMC
Docket No. MD03-01198

Applicant’s Request

The application for discharge review was received on 20030707.  The Applicant requests the characterization of service received at the time of discharge be changed to general/under honorable conditions.  The Applicant requested a documentary record review.  The Applicant did not list a representative on his DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20040812.  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:

Issue 1:  “Appr. July 2000 I was at work and was apprehended by MP’s and taken to Quantico, VA for processing of AWOL charges.  I was not incarcerated but put in a barracks for men going to trial.  During my trial I explained to the prosecutor that at the time of my service ending in June of 1981 I was put on Terminal Leave from my unit 3rd Marine 2nd Battalion Camp Lejeune NC.  Since my unit was disbanded there was no way I or my defense could prove I was on terminal leave.  I gave character references to the prosecutor recording my good marriage and work ethics since being out on terminal leave.  Even with a letter of recommendation from Rep. Barney Frank.  I was still given a discharge which is other than honorable and was told to apply for an upgrade through veteran services.  At present I volunteer at the Veteran Transition House helping veterans with computer skills and resumes.  Any consideration given to my application would be greatly appreciated by my children, family and myself.  Thank you

Brocktan, Mass Veteran Services said they had filed an upgrade application for me back in April 2001 but no response was ever received.”

Documentation

Regarding additional documentation, the Applicant marked the box "WILL NOT BE SUBMITTED.  PLEASE COMPLETE REVIEW BASED ON AVAILABLE SERVICE RECORDS;” however, the following additional documentation, submitted by the Applicant, was considered:

Character reference, dtd June24, 2003

Additionally, the Applicant marked the box "I PREVIOUSLY SUBMITTED AN APPLICATION ON (no date was annotated) AND AM COMPLETING THIS FORM IN ORDER TO SUBMIT ASSITIONAL ISSUES."  There is no evidence of the previous application found in the record.

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: USMCR (J)		770223 - 770227	COG

Period of Service Under Review:

Date of Enlistment:  770228		Date of Discharge:  020517

Length of Service (years, months, days):

	Active:    06  06  21 (Does not account for lost time)
	Inactive:  None

Age at Entry:  18			Years Contracted:  4

Education Level:  12			AFQT:  47

Highest Rank:  PFC

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  3.8 (8)			Conduct:  2.2 (11)

Military Decorations:  None

Unit/Campaign/Service Awards:  None 

Days of Unauthorized Absence:  (6809) 19810304 - 19991102 

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:

780315:	Applicant UA/AWOL 780216 to 780315 (Extracted from NAVMC 118(3).

781208:	Applicant UA/AWOL 781207 to 781208 (Extracted from NAVMC 118(3).

790502:	Applicant UA/AWOL 790319 to 790502 (Extracted from NAVMC 118(3).

790706:	Applicant UA/AWOL 790618 to 790706 (Extracted from NAVMC 118(3).

790802:	Applicant UA/AWOL 790709 to 790801 (Extracted from NAVMC 118(3).

790805:	I&I Staff, Orlando, FL msg 051326Z Aug 79:  Applicant apprehended by Datona Beach Police Department in Daytona Beach, FL at 0959 on 
2 Aug 79.  Charged with grand theft.  Currently confined at Volusia County Jail in Deland, FL.

800310:	Applicant IHCA/UA 790802 to 800310 (Extracted from NAVMC 118(3).

800528:	Applicant declared a deserter on 800528 (Extracted from NAVMC 118(3).

810304:	Applicant UA/AWOL 800528 to 810304 (Extracted from NAVMC 118(3). **

991103:	Applicant UA/AWOL since 0631, 810304. (NAVMAC 118(12). 

991103:	Applicant declared a deserter on 810304 having been an unauthorized absentee since 0631, 810304 from 2d Bn 6th Mar 2d MARDIV. (NAVMAC 118(12).

991103:	Applicant apprehended by civil authorities on 991001 (2100) at Plymouth, MA.  Returned to military control 991102.  Delivered to security Battalion, Quantico, VA.

991108:	Applicant from UA/AWOL at 2100, 991001, apprehended. (NAVMAC 118(12).

991123:	Special Court-Martial.
	Charge I:  violation of the UCMJ, Article 86:  
Specification:  Unauthorized Absence w/apprehension (4 Mar 81 – 1 Oct 99).
	Findings:  to Charge I and the specification thereunder, guilty.  
Sentence:  Bad conduct discharge, confinement for 33 days.
	CA 001011:  Sentence approved and ordered executed except for the BCD.

991001:	To confinement, Sentence of SPCM.

991102:	From confinement, to duty.

991201:	To appellate leave.

010111:	NC&PB denied clemency and restoration.

011130:	NMCCMR:  Affirmed findings and sentence.

020517:	SSPCMO:  Article 71c, UCMJ, having been complied with, Bad Conduct discharge ordered executed.

	** Applicant was transferred between 2d MARDIV infantry battalions while in a UA status.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20020517 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:  In response to the Applicant's issue, relevant and material details 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 tried under the Uniform Code of Military Justice, the action of the NDRB is restricted to upgrades based upon clemency only (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 service records the Board reviewed showed no mitigating or extenuating factors sufficient to offset the seriousness of the offenses for which the discharge was awarded.  Relief is therefore denied.
 
The following is provided for the edification of the Applicant.  There is no law or regulation that provides for an unfavorable discharge to be upgraded based solely on the passage of time or good conduct in the civilian life subsequent to leaving the service.  However, the NDRB is authorized to consider post-service factors in the recharacteriza-tion of a discharge.  Outstanding post-service conduct, 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 may be considered.  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.  Evidence of continuing educational pursuits, an employment record, documentation of community service, certification of non-involvement with civil authorities, and credible evidence of a substance-free lifestyle are examples of verifiable documents that may be provided to receive consideration for relief based on post-service conduct.  At this time, the Applicant has not provided sufficient documentation for the Board to consider an upgrade.
 
The Applicant is reminded that she remains eligible for a personal appearance hearing, provided an application is received at the NDRB within 15 years from the date of her 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 P1900.16F), effective 01 September 2001 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.

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