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

  ex-Pvt, USMC
Docket No. MD03-01291

Applicant’s Request

The application for discharge review was received on 20030723.  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  review.  The Applicant listed the Veterans Club/DCCC as the representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20040430.  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.  My use of alcohol impaired my ability to serve.

2.  Matters of conscience impaired my ability to be a “Good” service member.

3.  Personal problems impaired my ability to serve.”

4.  “Matters of conscience impaired my ability to be a “Good” service member.  After joining the FMF, I realized that I joined the service for the wrong reasons such as afore family members joining the armed forces I felt that I was only there because of obligation to my family to uphold a service mentality.  My use of alcohol impaired my ability to serve.  After retiring from liberty status and drinking heavily, I was put on duty by my Platoon Sgt.  I was very drunk as usual after hours of liberty.  I was in no shape nor condition to take charge of my post.  Then I was notified that I would be brought upon charges under the UCMJ.  Personal problems impaired my ability to serve.  At a time when the pressure of being a Marine existed in my family, upon leave I was not ready to be apart from my life outside the military.  The level of maturity, I was not ready for that was expected of me.  I wanted to serve, I really did, but was not ready mentally.” 

Documentation

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

Copy of DD Form 214
Affidavit with Issue 4 above (6 pp.)
Verification letter (3 copies)
Clemency Board Executive Order (2 pp.)
Clemency Board application
Application for correction of military record
Request for military records

PART II - SUMMARY OF SERVICE

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

	Active:    None
	Inactive: USMCR(J)		870707 - 870908	COG

Period of Service Under Review:

Date of Enlistment:  870909		Date of Discharge:  900122

Length of Service (years, months, days):

	Active:    01  11  14  (Does not include lost time)
	Inactive:  None

Age at Entry:  18			Years Contracted:  4

Education Level:  12			AFQT:  33

Highest Rank:  PFC

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  4.2 (4)			Conduct:  3.2 (5)

Military Decorations:  None

Unit/Campaign/Service Awards:  None 

Days of Unauthorized Absence:  87 

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:

880411:	NJP for violation of UCMJ, Article 86: Absent place of duty at 2120, 880404; violation of UCMJ, Article 92: Derelict in duties as a firewatch; violation of UCMJ, Article 134: At 2120, 880404 appear in public in improper liberty attire.
Awarded forfeiture of $150.00, restriction and extra duties for 14 days (6 days suspended for 6 months).  Not appealed.

880411:	Counseled for deficiencies in performance and conduct.  [Violation of UCMJ Articles 86 and 92.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

880727:	NJP for violation of UCMJ, Article 117: Used provoking gestures towards Sgt P_ at 0730, 880716.
	Awarded forfeiture of $175.00, restriction and extra duty for 14 days.  Not appealed.

890105:	NJP for violation of UCMJ, Article 91: Disrespectful to Cpl R_; violation of UCMJ, Article 117: Used provoking gestures towards Cpl R_.
	Awarded forfeiture of $310.00 for two months, reduced to Pvt (all suspended for 3 months).  Not appealed.

890414:	Civilian conviction, Tulsa County, OK for injury to minor child.
	Sentence:  Confinement for 1 year (all but 30 days suspended) and $500.00 fine.

890427:	To pre-trial confinement.

890629:	Special Court-Martial.
	Charge I:  violation of the UCMJ, Article 86: UA from 0801, 890129 to 890426 (87 days/A).
	Findings:  to Charge I, guilty.  
	Sentence:  Confinement for 63 days, reduction to Pvt, and a bad conduct discharge.
	CA 891228:  Sentence approved and ordered executed except for the BCD.
	
890629:	From confinement, to duty.

890703:	To appellate leave.

900122:	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 19900122 with a bad conduct discharge which was the sentence adjudged by a properly convened special court-martial.  That sentence was subsequently approved by the convening authority (A and B).  The Board presumed regularity in the conduct of governmental affairs (C).  

Issues 1-4.  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.  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