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

 ex-Pvt, USMC
Docket No. MD03-01292

Applicant’s Request

The application for discharge review was received on 20030728.  The Applicant requests the characterization of service received at the time of discharge be changed to general/under honorable conditions and the reason for the discharge be changed to remove the word “Desertion.”  The Applicant requests a personal appearance hearing in the Washington, D. C. area.  The Applicant listed the American Legion as his representative on the DD Form 293.  In the acknowledgement letter, the Applicant was informed that the Naval Discharge Review Board (NDRB) first conducts a documentary review prior to any personal appearance hearing.  

Decision

A documentary discharge review was conducted in Washington, D.C. on 20040504.  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 and narrative reason 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.  “On the attached copy of DD 214 Section 28 the following is list, AS A RESULT OF A COURT MARTIAL (SPCM) – DESERTION.  This is not correct.  Attached is a copy of record of conviction by court-martial listing wrongful appropriation, I was not a deserter.  I wish this to be removed totally from my DD 214.”
 
2.  “Also, I wish consideration be given to character of service listed change to General Under Honorable Conditions.  My problems were alcohol and some drugs. I did serve faithfully and honorably in Desert Shield and Desert Storm receiving Southwest Asia Medal with two stars and Kuwait Liberation Medal, and a combat veteran.  This should have some bearing upon this matter.”

Additional issues submitted by Applicant’s counsel/representative (AMERICAN LEGION):

3.  “(Equity Issue) Pursuant to 10 USC 874 (b) (UCMJ, Article 74) and in accordance with SECNAVINST 5420.174C, enclosure (1), paragraphs 2.24 and 9.3, this former member requests the Board’s clemency relief with up-grade of his characterization of service on the basis of his post-service conduct.”

Documentation

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

Copy of DD Form 214
Record of conviction by court-martial

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: USMCR(J)		891228 - 900227	COG

Period of Service Under Review:

Date of Enlistment:  900228		Date of Discharge:  931012

Length of Service (years, months, days):

	Active:    03  07  14  (Does not exclude lost time)
	Inactive:  None

Age at Entry:  17			Years Contracted:  4 

Education Level:  11			AFQT:  81

Highest Rank:  PFC

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  3.7 (4)			Conduct:  3.4 (4)

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM, SSDR, SWASM (w/2*), KLM 

Days of Unauthorized Absence:  37 

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:

901106:	NJP for violation of UCMJ, Article 86: UA from 0630, 901002 to 1121, 901029; violation of UCMJ, Article 112a: Tested positive for drugs.
	Awarded forfeiture of $360.00, CCU for 30 days, reduction to Pvt.  Not appealed.

910522:	NJP for violation of UCMJ, Article 92: Drinking in the barracks and drinking under age.
	Awarded forfeiture of $168.00 (suspended for 3 months), restriction and extra duty for 14 days.  Not appealed.

910530:	Counseled for deficiencies in performance and conduct.  [Conduct prejudicial to good order, excessive drinking, drinking in barracks.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

910610:	Vacated suspension from NJP of 910522.

910802:	NJP for violation of UCMJ, Article 92: Violate restriction orders; 
violation of UCMJ, Article 86 (2 specs):
Specification 1: UA from 0500, 910715 to 1300, 910716.
Specification 2: UA from 0630, 910701 to 2200, 910710.
Awarded forfeiture of $376.00 per month for 2 months, restriction and 
extra duties for 30 days.  Not appealed.

911101:	Special Court-Martial.
	Charge I:  violation of the UCMJ, Article 121. 
	Specification:  Wrongful appropriation.
	Charge II:  violation of the UCMJ, Article 130.
	Specification:  Housebreaking.
	Findings:  to Charge I and specification 1 thereunder, guilty.  To Charge II and specification thereunder, guilty.  
	Sentence:  Fine of $1000.00, confinement for 50 days, and a bad conduct discharge.
	CA 920117:  Sentence approved and ordered executed except for the BCD.

911205:	To appellate leave.

920611:	NC&PB denied clemency and restoration.

921110:	NMCCMR:  Affirmed findings and sentence.

930707:	COMA:  Petition for review denied.

931005:	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 19931012 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 narrative reason currently listed on the Applicant’s DD Form 214 is an administrative error.  The correct narrative reason for discharge is recommended for change on page one.  The Applicant was discharged as a result of the sentence of a special court-martial.  No other narrative reason more clearly describes the circumstances surrounding the Applicant’s punitive discharge.  Relief denied.

Issues 2 and 3.  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 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 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; Article 92, disobey a lawful order; Article 121, larceny; and Article 130, housebreaking.

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