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

 ex-Pvt, USMC 
Docket No. MD03-01479

Applicant’s Request

The application for discharge review was received on 20030910.  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 20040608.  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 believe this discharge does not reflect the manner in which I served the USMC.

2.  This discharge is based on one incident that occurred 2 months prior. to my original discharge date.

3.  I believe my work, time, devotion, accomplishments, and leadership during my enlistment should be considered in 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 Appreciation
Certificate of Good Conduct
Meritorious Mast
Marine of the Quarter certificate (2 pp.)
Letter of recommendation from Cpl B_
Letter of recommendation from Sgt E_
Letter of recommendation from Cpl J_
Letter of recommendation from Sgt M_
Letter of recommendation from Sgt S_ II
Letter of recommendation from Cpl J. J_
Letter of recommendation from Cpl G_
Letter of recommendation from Sgt V_
Letter of recommendation from Sgt R_
Letter of recommendation from Cpl S_
Letter of recommendation from Cpl H_
Letter of recommendation from J_ H_

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: USMCR(J)		970411 - 970428	COG

Period of Service Under Review:

Date of Enlistment:  970429		Date of Discharge:  030429

Length of Service (years, months, days):

	Active:    06  00  01
	Inactive:  None

Age at Entry:  23			Years Contracted:  4 

Education Level:  12			AFQT:  82

Highest Rank:  Cpl

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  4.6 (8)			Conduct:  4.6 (8)

Military Decorations:  None

Unit/Campaign/Service Awards:  NMCAM, GCM, AFEM, SSDR, LoA, MM, CoA, Rifle Expert Badge (2d Award), Pistol Expert Badge 

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:
	
001120:	Special Court-Martial.
	Charge I:  violation of the UCMJ, Article 112a (2 Specifications):
	Specification 1: Wrongfully used marijuana on 000705.
	Specification 2: Wrongfully used marijuana on 000822.
	Findings:  to Charge I and specification 1 thereunder, guilty.  To specification 2 under Charge I, not guilty.  To Charge II and specification thereunder, not guilty.  
	Sentence:  Confinement for 60 days, reduction to E-1, and a bad conduct discharge.
	CA 000611:  Sentence approved and ordered executed except for the BCD.

010312:	To appellate leave.

021023:	NMCCMR:  Affirmed findings and sentence.

030407:	COMA:  Petition for review denied.

030415:	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 20030429 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).  

Issues 1-3.  With respect to a discharge adjudged by a court-martial, 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 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 drug use.

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