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

 ex-PVT, USMC
Docket No. MD05-00355

Applicant’s Request

The application for discharge review was received on 20041216.  The Applicant requests the characterization of service received at the time of discharge be changed to general/under honorable conditions.  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 20050601.  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 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 am submitting a DD Form 293, Application for the review of discharge or dismissal from the armed forces.

I would like to have a JAG legal instrument assigned to me at no expense as I am unable to pay for private attorney, and I feel a JAG attorney will better be able to serve me.

I went AWOL for no reason other than I was 21 years old, and was unaware of the consequences this would have on the rest of my life.  I was young, and made a very bad decision.  I spent 39 days in the brig and prior to going AWOL, I had received excellent evaluations, and did receive a good conduct medal.  STUPID is my only excuse.  I got tired of the decisions being made by my CO and rather than fight about it, which would have done no good, I took flight.  (Fight or Flight) I chose flight.  I made a mistake/bad decision, but did not cause harm to any person other than myself.  I would appreciate your consideration for this very black mark to not follow me the rest of my life.

Since I do not want to cause any more trouble to the DoD or incur cost I cannot afford, I request that you obtain my 201 file and review it and see, prior to this incident, I had no problems as a member of my military unit.  I would like this to be resolved at the lowest level possible, and if it can be done by a review board that has my 201 file, I would be grateful for them to review and make a decision.”            

Documentation

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

Ltr from Navy-Marine Corps Appellate Review Activity dtd August 13, 1999 (2 pages)
U.S. Navy-Marine Corps Court of Criminal Appeals Decision dtd August 5, 1999
Copy of Special Court-Martial Order dated March 18, 1999 (2 pages)
Court of Appeal Counsel Solicitation Form 
Power of Attorney Authorization Form  

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: USMCR(J)		960402 - 960716	COG

Period of Service Under Review:

Date of Enlistment:  960717		Date of Discharge:  000121

Length of Service (years, months, days):

	Active:    03  03  05 		(Excludes lost time)
	Inactive:  None

Age at Entry:  18			Years Contracted:  4 

Education Level:  12			AFQT:  31

Highest Rank:  LCpl			MOS:  0311

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  3.8 (7)			Conduct:  3.3 (8)

Military Decorations:  None

Unit/Campaign/Service Awards:  AFEM, SSDR, NUC, RSB, LOA(2)

Days of Unauthorized Absence:  54

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:

970923:	Counseled for deficiencies in performance and conduct.  [Violation of Article 134, failure to maintain personal finances.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

981211:	To pre-trial confinement.
	
990119:	Special Court-Martial.
	Charge I:  violation of the UCMJ, Article 86, 
	Specification 1: Did on or about 981018, without authority, absent himself from his unit, until on or about 981211.
	Additional Charge:  violation of the UCMJ, Article 87,
	Specification 1: Did, on or about 981031, through neglect miss the movement of 1stBn, 1stMar, 1stMarDiv, with which he was required in the course of duty to move.      
	Findings:  to Charge I and specification 1 thereunder, guilty. To Additional Charge and specification 1 thereunder, guilty.  
	Sentence:  Confinement for 40 days, forfeiture of $500.00 pay per month for 1 month, and a bad conduct discharge.
	CA 990318:  Sentence approved and, except for the bad conduct discharge, ordered executed, but execution of that portion of the sentence adjudging confinement in excess of time served is suspended for a period of twelve months from the date of this action, at which time unless sooner vacated, the suspended portion of the sentence will be remitted without further action.
	
990805:	NMCCMR:  Affirmed findings and sentence.

000121:	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 20000121 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.  In response to the Applicant’s issue, 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.  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 neither the evidence of record nor the documents provided by the Applicant contained sufficient mitigating or extenuating factors to offset the seriousness of the offenses for which the discharge was awarded.  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.

In his issue, the Applicant requested that he be assigned a legal representative.  On 20050401, the NDRB informed the Applicant that the Board does not provide legal counsel to Applicants.  Further, the NDRB suggested the Applicant contact Veterans of Foreign Wars, Disabled American Veterans or the American Legion.  The Applicant’s application was then held in abeyance for 30 days.  The Applicant did not respond.  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 COURT-MARTIAL, of the Marine Corps Separation and Retirement Manual, (MCO P1900.16E), effective 950818 until 010831. 

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 for more than 30 days.

C.  Secretary of the Navy Instruction 5420.174D of 22December 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