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

ex-Pvt, USMC
Docket No. MD05-00034

Applicant’s Request

The application for discharge review was received on 20040927.  The Applicant requests the characterization of service received at the time of discharge be changed to general/under honorable conditions.  The Applicant requests a personal appearance hearing before the Board in Washington, D.C.  The Applicant’s application was accepted for a documentary record review vice a personal appearance hearing.  The Applicant did not list any representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20050304.  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:

 “I appeal to the Naval Discharge Review Board to reconsider my discharge on the basis of clemency for three reasons. 

1.  The Bad Conduct Discharge pertains to a single matter occurring over a brief time period out of a total active service period of nearly 6 years otherwise served honorably and with distinction.
2.  My discharge permanently denies me any possibility of redeeming myself and obtaining employment consistent with my aspirations and qualifications.
3.  In the 4 years since my discharge I have demonstrated dependability, responsibility, and maturity.

I am very sorry for my immature actions that violated established USMC policy.  An oral contract given to me over a handshake by my career planner was breached and caused me extreme unhappiness that led to my unacceptable actions.  I had been promised Drill Instructor School if I re-enlisted which had been a goal of mine since I graduated boot camp in 1994.  My service records will support that as being my first choice throughout my period of active service.  When I was instead assigned recruiting duty following my re-enlistment, I felt I was wronged and selfishly reacted to my disappointment by consuming marijuana.  I deserved to be punished for my actions and regard this as an explanation, not an excuse.  I regret every day what I did and would never engage in such conduct again if given a second chance.  Prior to the circumstances causing my unhappiness and depression I was a dedicated, enthusiastic and motivated Marine.  My five years and seven months of honorable service includes promotions, letters of appreciation, 6 schools completed with distinction and a meritorious mast for outstanding service and exemplary leadership.

In the four years since my separation, I have been denied employment at every decent job I have applied for, including several law enforcement positions.  I am embarrassed of my job but I have held it continuously for four years and have not missed a day of work in that time period.  It is a low paying job that imposes significant financial limitations and, among other sacrifices, forces me to take college courses at a slow pace.  The character of the discharge is also preventing me from doing what I really want to do — getting back into the armed forces and serving my country in the military.  Realizing the low probability of that ever happening with the USMC, I have spoken to US Army recruiters and have been informed I would be eligible for enlistment if my reenlistment code was not RE-4B.  I desperately need the opportunity to redeem myself.  Without that opportunity I will never have employment I can be proud of or happy with.

I have taken college courses every semester since my discharge, including several during the summers and must pay for each credit out of my limited earnings.  However, in less than four years I have completed more than half of the requirements for a bachelor’s degree in business administration and have maintained a 3.5 grade point average.  Because of my low earnings and despite a Spartan life style, I have incurred debt, including a car loan.  Nevertheless, I have never missed a payment and my credit is good.  I lead a healthy life and do not drink, smoke or use marijuana or any other controlled substances.  And, as I have mentioned, I have kept a single job throughout the four-year period and have never missed a day of work for any reason - health, weather or anything else.  Finally, I have the complete support of my family which includes my five brothers, two of whom followed my example and also enlisted in the US Marines, one still on active duty and serving a second tour in Iraq.

Given my age now, it is doubtful I will ever have the opportunities I want should the board reject my appeal.  I am free yet a rejection essentially imposes a life sentence.  In just a few more years I will exceed the maximum age limit for any US military branch and most police departments.  I respectfully request the board to consider the four years of humiliation, guilt and sacrifice I have experienced as adequate and sufficient for the offenses committed.  I respectfully request the board to review my discharge on the basis of clemency and to upgrade it, and my re-enlistment code, so that I can once again serve my country.”

Documentation

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

Applicant’s DD Form 214
Employment reference letter dated August 25, 2004
Dean’s List notification letter dated June 5, 2001

PART II - SUMMARY OF SERVICE

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

	Active:   USMC		940614 - 980225	HON
	Inactive: USMCR(J)		940525 - 940613	COG

Period of Service Under Review:

Date of Enlistment: 	980226	Date of Discharge:  020709

Length of Service (years, months, days):

	Active:    04  04  14  (Does not exclude lost time)
	Inactive:  None

Age at Entry:  24			Years Contracted:  4 

Education Level:  12			AFQT:  78

Highest Rank:  Sgt			MOS:  6432

Final Enlisted Performance Evaluation Averages:

Fitness reports from the period of 980226 – 990331 and from 991025 – 000712 were available for review

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM, LA (2), MM, SSDR, GCM, RSB, PEB

Days of Unauthorized Absence:  5

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:

990930:	Counseled for deficiencies in performance and conduct.  [Substandard performance as a canvassing recruiter.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued. [Extracted from SJA letter of 001103.]

991204:	Counseled for deficiencies in performance and conduct.  [Substandard performance as a canvassing recruiter.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.  [Extracted from SJA letter of 001103.]

Undated:	Declined drug abuse treatment.

000510:	To pre-trial confinement.
	
000628:	Special Court-Martial (Trial dates 000515 and 000628).
	Charge I:  violation of the UCMJ, Article 86.
	Specification:  UA from 000306 to 000310.
	Charge II:  violation of the UCMJ, Article 112a.
	Specification:  Wrongfully used marijuana on diverse occasions between 991231 and 000310.
	Additional Charge I: violation of the UCMJ, Article 86.
	Specification:  UA from 000508 to 000509.
	Additional Charge II (2 specifications): violation of the UCMJ, Article 90.
	Specification 1:  Disobeyed order from 1Lt O_ to report to RS HQ on 000509.
	Specification 2:  Disobeyed order from Maj L_ to report to work on 000509.
	Additional Charge III: violation of the UCMJ, Article 91.
	Specification:  Disobeyed order from SSgt S_ to report to work on 000508.
	Additional Charge IV:  violation of the UCMJ, Article 112a.
	Specification:  Wrongfully used marijuana on diverse occasions between 000418 and 000428.
	Additional Charge V:  violation of the UCMJ, Article 112a.
	Specification:  Wrongfully used marijuana on diverse occasions between 000428 and 000512.
	Findings:  to Charge I and Charge II and specifications thereunder, guilty.  To Additional Charge I and specification thereunder, guilty.  To Additional Charge II, specification 1 thereunder, withdrawn.  To Additional Charge II, specification 2 thereunder, guilty.   To Additional Charge III and specification thereunder, withdrawn.  To Additional Charges IV and V, and the specifications thereunder, guilty.
	Sentence:  Fine of $600.00 per month for 3 months, confinement for 75 days, reduction to E-1, and a bad conduct discharge.
	CA 001218:  Sentence approved and ordered executed except for the BCD.
	
000712:	From confinement, to duty.

000802:	To appellate leave.

020404:	NMCCMR:  Affirmed findings and sentence.

020709:	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 20020709 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.  The Applicant was found guilty at court-martial of unauthorized absence, disobedience of the orders of a commissioned officer, and illegal drug use.  With respect to a discharge adjudged by a court-martial case, the action of the NDRB is restricted to upgrades based on clemency.  Clemency is an act of leniency that reduces the severity of the punishment imposed.  The Applicant’s case was considered under the pertinent standards of equity to determine if any factors in this particular case merited clemency.  After a thorough review of the Applicant’s record and issues submitted, the Board determined that clemency was not warranted and that the sentence awarded the Applicant at his court-martial was appropriate for the offenses he committed.  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 COURT-MARTIAL, of the Marine Corps Separation and Retirement Manual, (MCO P1900.16F), effective 01 September 2001 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 86, unauthorized absence; Article 90, disobedience of the orders of a commissioned officer; and Article 112a, wrongful use of illegal drugs.

C.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part II, 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 “http://Boards.law.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:

		Secretary of the Navy 	Council of Review Boards
		Attn:  Naval Discharge Review Board
		720 Kennon Street SE Rm 309
		Washington Navy Yard DC  20374-5023