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

 ex-Pvt, USMC
Docket No. MD03-01486

Applicant’s Request

The application for discharge review was received on 20030915.  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 listed the American Legion as his representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20040617.  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

No issues were submitted by the Applicant. 

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

“1.  Equity Issue: Based on our review of the evidentiary record and in accordance with 10 USC 874 (b) (UCMJ, Article 74) and SECNAVINST 5420.174C, enclosure (1), paragraphs 2.24 and 9.3, we request on behalf of this former member the Board’s clemency relief with up-grade of his characterization of service on the basis of his post-service conduct.
________________________________________________________________________

In accordance with 32 C.F.R., section 724.166, and SECNAVINST 5420.174C, enclosure (1), paragraph 1.16, The American Legion submits to the Naval Discharge Review Board (NDRB or Board) the following statement in support of this Applicant’s petition.

Review of the service record reflects that this Applicant had satisfactory overall PRO/CON markings of 4.7/4.6 and was issued the RMB.  He was convicted by SCM on 891208 for VUCMJ, Art. 86; awarded NJP on 900111 for VUCMJ, Art. 91 and convicted by SPCM 900501 for VUCMJ, Art. 91.  The convening authority approved findings and sentence of the SPCM on 911023.  Following USNMCMR review, which affirmed the SPCM decision 911023, he was separated with a Bad Conduct Discharge as a result of the court-martial conviction as authorized by MARCORSEPMAN, Par. 1005.

Essentially, as noted on DD Form 293 attachment, this Applicant is requesting that his discharge be upgraded because of his outstanding post-service conduct and accomplishments.  He has submitted 16 pages of documentation attesting to his good post-service character, hard work, educational pursuits and community involvement for the Board’s consideration.

The American Legion’s express purpose in providing this statement and any other submittals or evidence filed is to assist and support this former member in resolving any improprieties or inequities in the character and basis for discharge.  Moreover, we rest assured that the NDRB’s final decision will reflect sound equitable principles consistent in law, regulation, policy and discretion as promulgated by title 10 U.S.C., section 1553, and set forth in 32 C.F.R., part 724 and SECNAVINST 5420.174C, enclosure (1).

This case is now respectfully submitted for deliberation and disposition. ”

Documentation

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

Copy of DD Form 214
Letter from Applicant
Reference letter from J_ D. M_
Phi Theta Kappa International Honor Society membership letter
Reference letter from Prof. J_ N_
Reference letter from S_ M_ B_
AS degree certificate
College honors certificate
All USA Academic Team nomination for 2000
Certificate of Recognition
John and Frances A. Tallo Scholarship award
Three IT certifications
Outstanding Employee award
Newspaper article 

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: USMCR(J)		890315 - 890625	COG

Period of Service Under Review:

Date of Enlistment:  890626		Date of Discharge:  911023

Length of Service (years, months, days):

	Active:    03  03  28 (Doesn’t exclude lost time and appellate leave.)
	Inactive:  None

Age at Entry:  19			Years Contracted:  4 

Education Level:  12			AFQT:  48

Highest Rank:  Pvt

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  4.3 (2)			Conduct:  4.2 (2)

Military Decorations:  None

Unit/Campaign/Service Awards:  None

Days of Unauthorized Absence:  25

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:

891208:	Summary Court-Martial.
	Charge I:  violation of the UCMJ, Article 86.
	Specification: UA from SOI from 891112 to 891122.
	Finding:  to Charge I and the specification thereunder, guilty.
	Sentence:  Forfeiture of $300.00,  and confinement for 1 month.
	CA action 891214:  Sentence approved and ordered executed.

891208:	To confinement.  [EXTRACTED FROM THE DD 214.]

891231:	From confinement to full duty.  [EXTRACTED FROM DD214.]

900111:	NJP for violation of UCMJ, Article 91: Disobeyed order from MSgt W_ to get his gear and move to 3d Plt Bks.
	Award:  Forfeiture of $150.00 (suspended for 1 month), restriction and extra duty for 14 days.  Not appealed.

900111:	Counseled for deficiencies in performance and conduct.  [Frequent violations of the UCMJ.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

900206:	Vacate suspended punishment from NJP of 900111.

900319:	Applicant requested separation in lieu of trial.

900322:	Request denied.

900501:	Special Court-Martial.
	Charge I:  violation of the UCMJ, Article 91:
	Specification: Disobeyed lawful order of GySgt W_ to return to training.
	Charge II:  violation of the UCMJ, Article 86.
	Specification: UA from 900326 to 900410.
	Findings:  to Charge I and specification thereunder, guilty.  To Charge II and specification thereunder, guilty.  
	Sentence:  Fine of $482.00 for 4 months, confinement for 100 days, and a bad conduct discharge.
	CA 900612:  Sentence approved and ordered executed except for the BCD.

900501:	To confinement.  [EXTRACTED FROM DD214.]

900722:	From confinement.  [EXTRACTED FROM DD214.]

900803:	To appellate leave.

910122:	NMCCMR:  Affirmed findings and sentence.

911023:	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 19911023 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 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; and Article 91, disobedience to a SNCO.

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