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

 ex-Pvt, USMC
Docket No. MD05-00330

Applicant’s Request

The application for discharge review was received on 20041210.  The Applicant requests the characterization of service received at the time of discharge be changed to honorable and the reason for the discharge be changed to “Convenience of the govt” and “a re-enlistment code change to RE-1 and corresponding Separation Program number/Designator.”  The Applicant requests a documentary record discharge 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 20050428.  After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, the Board determined that clemency was not warranted and that the characterization of discharge was appropriate.  The Board’s vote was unanimous that the character of service and reason for 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:

“#1 I believe this first issue to be the most fatal of them all.  It paved the road for my demise.  It was my MOS 3531, as a Motor Vehicle Operator.  I was so un-motivated that I hated getting up in the morning.  I remember when I was in high school I took an aptitude test, and the final result suggested that I would be a good truck driver.  I have not forgotten that test to this day.

#2 the second issue was also detrimental to my life as a Marine, as well as a husband.  I was torn between the two.  It was difficult because I had always wanted to be a Marine from a young age - 4 years old.  I really hated my MOS, and really loved my wife, but I knew that I dragged the both of us into something we were not ready for.  I was 20 and she was 17 when we decided to enter marriage, and the Corps.

#3 the third issue is one that I just cannot believe that occurred.  It was handled in an utmost un-professional manner.  A manner that to me is in contrast to the Marine Corps.  Principles.  I lost a lot of respect for the image of a Marine that I was, and that I could have potentially become.  I and some friends (Marines) were accused of Rape, Sodomy etc.  We were incarcerated and segregated in solitary confinement like animals, for 3 months.  Each of those charges was false, and still infuriates me to this day! I lost a lot of respect from people that were important to me - Staff NCO’s, NCO’s, my wife, my family! I lost it all!

#4 the fourth issue was another which was a direct result of my false incarceration.  Upon release from the Brig, I was given an order by the C.O. to drive someone out to the field.  I was still upset from being imprisoned thus; I denied the order because I had not seen my baby boy in 3 months including the facts that I had missed Thanksgiving, Christmas, and New Years again! First time was because of Desert Storm I, which I did not mind.  (At this point I was past the 4 year mark).

#5 the fifth issue is the stinging fact that I had signed a contract for 4 years of active duty and was extended 10 extra months, primarily spent in confinement (as illustrated on the DD214).  I understood that the contract was for 4 years active; and 4 years in-active.

#6 this issue really bothers me.  Because on “line 29” of the DD 214, it displays the dates of my incarceration 911123-920220, 920413-920919 as “time lost”.  I was in the Brig, which makes me accounted for.  These dates are supplementary to dates of UA.  I believe that the convening authority upon viewing all the dates made the decision for Bad Conduct Discharge.

#7 this one bugs me extremely! The fact that I went only ONCE after basic training to the Rifle Range.  It was supposed to be once a year, for the 4 year contract.  That was very un-fair to me.  I love to shoot.

#8 here is where I was very confused as a Marine.  I was always squared-away.  (I remember pressing my white t-shirts in the 5th grade, with creases).  Consequently, my uniform was immaculate, as well as my boots.  I had my hair cut every Friday, and was always ready for inspection on Monday morning.  even if there was no inspection.  I always attended PT and never fell out of a run, or a forced march.  1 was exceedingly motivated when it came to singing cadence and running at 0530, that was the best part of being in the Corps--It’s something that not a lot of people know, and probably would hate to do, but I loved it because it taught me how to tackle the day.

#9 the fact that I was not given the opportunity to sign for my Good Conduct Medal, they knew where I was, they could have done that for me, after all I was a volunteer to the USMC's mission.

#10 without hesitation I went to Desert Storm I.  I said all my goodbyes, and accepted the fact that I possibly would not return.  But I was motivated, and I was ready! Ready to defend my country and I would do it again.  I did not receive any credit for my accomplishment, nor did I ask for any.  I was ready for the inevitable.

»I joined the Marines because I wanted to, not because I had to«

These statements have been made to the best of my knowledge so help me God.  They are truth and factual.  Any inconsistencies that may be revealed would be an error on my behalf and I will take full responsibility for.  I will be happy to provide clarification.  The standards in my life are getting higher and higher, I cannot meet them with a BCD.  I need an upgrade to an Honorable Discharge so that I can teach my son to raise his own standards one day, as well as future children.  I look forward to meeting with you to defend/argue my case.  I am motivated, and I am ready.  Thank you.

Cordially,

A_ M.  Q_ (Applicant)
(social security number deleted)”

Documentation

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

Applicant’s DD Form 214
Applicant’s statement (5 pages)
Applicant’s email address
Certificate of live birth of T_ W_ O_
Letter of Acceptance to Faith Lutheran Jr/Sr High dtd 040223
Faith Lutheran Jr/Sr High Tuition Schedule
Statement from Applicant’s son, undated
Statement from J_ P_ dtd 041118
Statement from I_ N_, undated
Statement from E_ F_ dtd 041121, unsigned
Statement from D_ L. C_, Ph.D. dtd 040809
Statement from S_ P_, undated
Statement from H_ P_ dtd 041118, unsigned
Statement from D_ R. M, pastor, dtd 040517
Statement from Dr. R_ K_ dtd 040809
Statement from M_ L. A_ dtd 050715
Statement from R_ D. M_ dtd 041120
Statement from M_ K_ dtd 040831
Statement from D_ P_ dtd 041128
Statement from A_ P_ dtd 041120
Statement from H_ P_, undated
Statement from J_ L_, unsigned, undated
Applicant’s statement concerning false accusations of rape
Decree of divorce dtd 920911 (4 pages)
Statement from P_ A. M_, Ph.D. dtd 040720
Statement from D_ M_ dtd 040810
UNLV Transcript printed 040709
Elementary Reports for T_ O_ from Shiloh Christian School (16 pages)
Employment verification from Clark County Juvenile Justice Services dtd 040712
Applicant’s statement regarding employment with Clark County
Applicant’s statement regarding photos submitted
7 color photographs

PART II - SUMMARY OF SERVICE

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

	Active:   None 
	Inactive: USMCR(J)		870824 - 880228	COG

Period of Service Under Review:

Date of Enlistment:  880301		Date of Discharge:  950519

Length of Service (years, months, days):

	Active:    06  01  06		[Excludes lost time]
	Inactive:  None

Age at Entry:  19			Years Contracted:  4

Education Level:  12			AFQT:  40

Highest Rank:  LCpl			MOS:  3531

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  4.2 (8)			Conduct:  4.1 (8)

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM, SSDR, SASM, MUC 

Days of Unauthorized Absence:  6 

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:

880809:	NJP for violations of UCMJ, Article 92:  Specification:  In that SNM violated an order by going to Las Vegas, NV without an Out of Bounds Pass.  Violation of Article 86:  Specification:  In that SNM on or about 1820, 880805 absent himself from appointed place of duty:  firewatch formation, and did remain absent until 2300 880807.
Awarded forfeiture of $156.00 per month for 1 month, restriction and extra duties for 14 days.  Restriction and extra duties suspended for 6 mos.  Not appealed.

890607:	NJP for violation of UCMJ, Article 92:  Specification:  In that SNM, having knowledge of a lawful order, failed to obey same by wrongfully driving on an unauthorized road with a government vehicle.  
Awarded forfeiture of $190.00 per month for 1 month, restriction and extra duties for 14 days.  Not appealed.

891215:	Counseled for deficiencies in performance and conduct.  [Lack of enthusiasm, initiative and integrity.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

900530:	NJP for violations of UCMJ, Article 86:  Specification:  At 0730, 900515 without authority, absent himself from place of duty, to wit: EAP and did remain so absent until 0730, 900516.  Article 92:  Specification:  Having knowledge of a lawful order, on or about 900128 fail to obey said order by making three unauthorized phone calls.
Awarded forfeiture of $207.00 per month for 1 month, restriction and extra duties for 14 days.  Not appealed.

910328:	Counseled for deficiencies in performance and conduct.  [Poor judgment and negligence in the performance of duties for losing his M-16A2 service rifle while stationed in Saudi Arabia.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

910717:	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.

911123:	Applicant to pretrial confinement.

920220:	Special Court-Martial.
	Charge I:  violation of the UCMJ, Article 81:  Specification 1:  Conspire with PFC M_, LCpl G_, LCpl T_ and PFC R_ to commit offenses, to wit:  rape and forcible sodomy of PFC F_.  Specification 2:  Conspire with PFC M_, LCpl G_, LCpl T_ and PFC R_ to make false official statements under oath.
	Charge II:  violation of the UCMJ, Article 92:  Specification 1:  On 91118 or 911119 violate a lawful order by having a female in the male BEQ.  Specification 2:  On 911118 or 911119 violate a lawful order by possessing and consuming alcohol in the BEQ.
	Charge III:  violation of the UCMJ, Article 120:  Specification:  On 911118 or 911119, did rape PFC F_.
Charge IV:  violation of UCMJ, Article 125:  On 911118 or 911119, commit sodomy with PFC F_.  
Charge V:  violation of UCMJ, Article 134:  Specification 1:  Being a married man, did wrongfully have sexual intercourse with PFC F_, a married woman not his wife.  Specification 2:  Wrongfully commit indecent acts with PFC F_.  Specification 3:  Wrongfully make a false official statement.
Additional Charge V:  violation of UCMJ, Article 134:  Specification:  Wrongfully endeavor to influence the testimony of a witness before a court-martial.
	Findings: 
	Charge I:  Spec 1, Charge I:  W, Spec 2, Charge I: G
	Charge II:  Spec 1, Charge II : G, Spec 2 Charge II:  G
	Charge III:  W; Spec, Charge III:  W
	Charge IV:  W; Spec, Charge IV: W
	Charge V:  G; guilty of a violation of Article 80 as pertains to specification 1.  Spec 1, Charge V; Not guilty but guilty of a violation of Article 80.  Spec 2, Charge V; guilty except for the words in line 7, “by engaging” and except the words in lines 7 and 8, “and sodomy” and except the words in line 9, “sodomy and” substituting the words on line 7 “attempting to engage.”  Of the excepted words, not guilty; of the substituted words, guilty of the specification as excepted and substituted, guilty.  Spec 3, Charge V; G, except the words, “I did not have sex with Brick and.”  Of the excepted words, not guilty; of the specification as excepted, guilty.
	Sentence:  Forf $250 for 4 mos, confinement for 90 days and reduction to E-1.
	CA 920709:  Sentence approved and ordered executed.

920227:	Applicant from confinement, to unauthorized absence.

920229:	Applicant from unauthorized absence.

920413:	Special Court-Martial.
	Charge I:  violation of the UCMJ, Article 89: Specification:  On or about 920227, behave himself with disrespect toward his superior commissioned officer.
	Charge II:  violation of the UCMJ, Article 92:  Specification 1:  Was on or about 920227 disrespectful toward a superior noncommissioned officer.  Specification 2:  Was on 920227 disrespectful toward a superior staff noncommissioned officer.  Specification 3:  Did on 920227 disobey an order from a superior noncommissioned officer.
	Charge III:  violation of the UCMJ Article 95:  Specification:  Did on or about 920227 escape from confinement.  
	Additional Charge I:  violation of the UCMJ Article 86:  Specification:  Did on 920227 absent himself and remain so absent until 920229.
	Additional Charge II:  violation of the UCMJ Article 117:  Specification:  Use provoking words and gestures on 920221.
	Findings:  To all charges and specifications, guilty.  
	Sentence:  Forf $523.00 pay per month for 6 mos, confinement for 180 days and a Bad Conduct Discharge.
	CA 921130:  Sentence approved and ordered executed except for the BCD.
	
920413:	To confinement, sentence of SPCM.

920731:	To appellate leave.

930920:	NMCCMR:  Affirmed findings and sentence.

940218:	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 19950519 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 1-10.  In response to the Applicant’s issues, relevant and material facts stated in a court-martial specification are presumed by the NDRB to be established facts.  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.  After a thorough review of the Applicant’s record, issues submitted, and post service accomplishments, 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 was discharged on 19950519 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.  No other Narrative Reason for Separation could more clearly describe why the Applicant was discharged.  Relief denied.

Since the NDRB has no jurisdiction over reenlistment, reentry, or reinstatement into the Navy, Marine Corps, or any other of the Armed Forces, NDRB is not authorized to change a reenlistment code.  Only the Board for Correction of Naval Records (BCNR) can make changes to reenlistment codes.

The Applicant remains eligible for a personal appearance hearing, provided an application is received, at the NDRB, within 15 years from the date of 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 [e.g., Article 86, unauthorized absence for more than 30 days].

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