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

 ex-Pvt, USMC
Docket No. MD03-01480

Applicant’s Request

The application for discharge review was received on 20030911.  The Applicant requests the characterization of service received at the time of discharge be changed to honorable.  The Applicant requests a personal appearance hearing before the Board in the Washington National Capital Region.  The Applicant listed the Veterans of Foreign Wars 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 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/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.  “To whomever it may concern,

There was an approximate period of about four months from April 1992 to the end of  July 1992 that is very hazy for me to remember, but this is the block of time that all of the trouble began for me. Prior to this four month period, my service was considered excellent as my numerous meritorious promotions and meritorious masts will attest to.

In retrospect, I believe that I was the object of hazing and harassment by a particular group of people within my unit (MWSS-274). I say group of people because this harassment was much too organized to be the work of only a few people.

Possible reasons for this harassment are only speculation, but range from promotion envy, suspicion of my affiliations, cover-up, vigilantism, to non-conformance with a command undermining element within MWSS-274. Unfortunately, because I don’t know who is responsible, or exactly why this happened to me, I cannot be any more specific with the possible motivations of the individuals who hastened my dismissal from the Marine Corps.

I realize that I was punished for taking an unauthorized absence from service, however, with life experience I now see that the reason I left was the result of the hazing and harassment. In addition, during conversation with my appointed attorney, I was asked if I wanted out of the Marine Corps, and that the only way he could get me out was with a bad conduct discharge. I said yes that I wanted to be discharged not fully knowing what the consequences of a bad conduct discharge would be.  In retrospect, I did not want out of the Marine Corps, I simply wanted to be respected by my peers and not hazed or harassed. Furthermore, I believe that the behavior that resulted in the bad conduct discharge was the direct result of manipulation and coercion with the intent to cause my dismissal from service. In much simpler terms, I was ganged up on.

My immaturity and naiveté at that time of my life are no doubt the reasons why I could not see the intentions of the people who were at the root of this manipulation and coercion. I was very young and inexperienced with life’s trials and errors during my time in the Marine Corps; however, now that I have matured I can fully appreciate the consequences of a bad conduct discharge, and I must say that my future career options are looking very bleak.

With all of this relatively new information in mind, I do not believe that a bad conduct discharge should be “stapled to every employment or financial application that I fill out.”

On my behalf, it should be known that I am as patriotic, or more so, than any other citizen of our country. I am in tune with the diversified values that the United States of America holds dear. I am a community and civic minded citizen who values integrity and has only honorable intentions. I want what every other honest hardworking person in this country wants, a satisfying career, a bride, and a peaceful home to raise our children. Needless to say, the bad conduct discharge is hindering this simple dream.

Respectfully,”

Documentation

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

Copy of DD Form 214
Letter from VFW
Résumé
College transcript
Note from Applicant

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: USMCR(J)		880707 - 890618	COG

Period of Service Under Review:

Date of Enlistment:  890619		Date of Discharge:  941115

Length of Service (years, months, days):

	Active:    05  04  27  (Does not exclude lost time)
	Inactive:  None

Age at Entry:  18			Years Contracted:  4

Education Level:  12			AFQT:  70

Highest Rank:  Cpl

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  4.5 (7)			Conduct:  4.4 (7)

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM, MM, SSDR, NUC, SASM (w/2*) 

Days of Unauthorized Absence:  19 

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:

920428:	NJP for violation of UCMJ, Article 86 (4 specs):
Specification 1: UA from 1730, 920405 to 2100, 920406.
Specification 2: UA from 0731-0837, 920409.
Specification 2: UA from 0400-0430, 920420.
Specification 2: UA from 0500-0537, 920422.
Awarded forfeiture of $250.00 per month for 2 months, 29 days correctional custody, reduced to LCpl.  Not appealed.

920428:	Returned by Correctional Custody for refusal to train.  CO awarded 45 days restriction and extra duty pending charges and referral to court-martial.

920604:	To pre-trial confinement.

920731:	Special Court-Martial.
	Charge I:  violation of the UCMJ, Article 86:
	Specification:  UA from 920514 to 920602.
	Charge II:  violation of the UCMJ, Article 90:
	Specification 1:  Willfully disobeyed order from superior commissioned officer to serve 29 days at CCU.
	Specification 2:  Willfully disobeyed order from OIC to begin training at CCU.
	Charge III:  violation of the UCMJ, Article 91:
	Specification 1:  Willfully disobeyed order from superior non-commissioned officer to begin training at CCU.
	Specification 2:  Disrespectful to Sgt K_.
	Charge IV: violation of the UCMJ, Article 92:
	Specification: Derelict in performance of duties while at CCU.
	Charge V: violation of the UCMJ, Article 123a:
	Specification:  Writing draft in the amount of $4066.83 with insufficient funds.
	Charge VI: violation of the UCMJ, Article 134:
	Specification: Break restriction on 920502.
	Findings:  to Charge I and specification thereunder, guilty.  To Charge II and specifications thereunder, guilty.  To Charge III and specifications thereunder, withdrawn.  To Charge IV and specification thereunder, withdrawn.  To Charge V and specification thereunder, guilty.  To Charge VI and specification thereunder, guilty.
	Sentence:  Fine of $500.00, restriction for 6 months, reduction to E-1, confinement for 6 months, and a bad conduct discharge.
	CA 921118:  Sentence approved and ordered executed except for the BCD, but the execution of confinement in excess of time served and forfeiture in excess of $482.00 per month for 6 months is suspended for 6 months.

920731:	From confinement, to duty.

920918:	To appellate leave.

930730:	NMCCMR:  Affirmed findings and sentence.

940627:	COMA:  Petition for review denied.

941115:	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 19941115 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, 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 90, disobey the order of a commissioned officer; Article 123a, insufficient funds; and Article 134, break restriction.

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	
		Washington, D.C.  20374-5023	 

.