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

 ex-Pvt, USMC
Docket No. MD05-00454

Applicant’s Request

The application for discharge review was received on 20050112.  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 “hardship.”  The Applicant requests a documentary record review.  The Applicant did not list any representative on the DD Form 293.

Decision

A documentary review was conducted in Washington, D.C. on 20050629.  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 and reason for 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 request to have my discharge upgraded to Honorable and the reason for discharge changed to Hardship.  I feel that I have adequate paid my debt to society and remained an upright citizen since my discharge.  I served two months in the brig.
I did talk with my Commander Officer about my personal problems and ask for a pass to go on leave to see about my mother or to allow me to get a hardship discharge.
As you can see from the attached documents, I did go awol to see about my mother in Georgia.  My father had died and my mother was having mental problems and financial problems.  I realize I did wrong by going AWOL and not turning myself in, but they knew where I was and I went willingly when they came for me.
Please consider the attached affidavits that show that I have not had any trouble with the law, and have worked since my discharge.  I am currently a deputy sheriff with the Atkinson County, Georgia Sheriff’s Office.  Verification of this is attached.
I am truly sorry I dishonored the Marine Corp by going awol.
I did apologize for this and paid my debt for this.
I ask that you sympathetically consider granting me an upgrade of my discharge.”

Documentation

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

Applicant’s DD Form 214 (Army National Guard)
National Guard report of separation effective August 25, 1997
Certificate of promotion to Lance Corporal, dated January 2, 1998
Applicant’s statement, dated September 16, 1998
Job/character reference from Sheriff, Atkinson County, dated December 9, 2004
Job/character reference from Probate Judge, Atkinson County, dated December 10, 2004
Job/character reference from Atkinson County Magistrate, dated December 9, 2004
Four pages from Applicant’s service record

PART II - SUMMARY OF SERVICE

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

	Active:   USANG		960314 - 960620	Uncharacterized/EAOS
	Inactive: None

Period of Service Under Review:

Date of Enlistment:  970826		Date of Discharge:  000927

Length of Service (years, months, days):

	Active:    03  01  02	(Does not exclude lost time)
	Inactive:  None

Age at Entry:  22			Years Contracted:  4

Education Level:  12			AFQT:  32

Highest Rank:  LCpl			MOS:  0331

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  4.5 (2)			Conduct:  4.5 (2)

Military Decorations:  Army Achievement Medal

Unit/Campaign/Service Awards:  Army Service Ribbon, Sharpshooter Ribbon M16, Sharpshooter Ribbon Hand Grenade, Rifle Expert Badge

Days of Unauthorized Absence:  62

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:

980302:	Applicant to unauthorized absence 0731, 980302.

980320:	Applicant from unauthorized absence 0855, 980320 (18 days/apprehended).

980326:	NJP for violation of UCMJ, Article 86:
Specification:  Unauthorized absence from 0731, 980302 to 0855, 980320.
Award:  Forfeiture of $251.00 per month for 1 month, restriction and extra duties for 14 days.  Not appealed.

980601:	Applicant informed eligible but not recommended for promotion to LCpl for a period of 3 months.

980707:	Applicant to unauthorized absence 0800, 980707.

980820:	Applicant from unauthorized absence 1210, 980820 (44 days/apprehended).

980822:	Applicant to pre-trial confinement.

980929:	Special Court-Martial.
	Charge:  violation of the UCMJ, Article 86:
	Specification: Unauthorized absence from 980707 to 980820.
	Findings:  to the Charge and sole specification thereunder, guilty.
	Sentence:  Confinement for 38 days, reduction to E-1, and a bad conduct discharge.
	CA 981208:  Sentence approved and ordered executed except for the BCD.

981026:	Applicant to voluntary appellate leave.

991020:	NMCCMR:  Affirmed findings and sentence.

000420:	Appellate review complete.

000927:	SSPCMO:  Article 71c, UCMJ, having been complied with, Bad Conduct discharge ordered executed.

Complete record of trial unavailable

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20000927 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.  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.  The Applicant’s service was marred by a nonjudicial punishment proceedings for a violation of UCMJ Article 86, unauthorized absence for 18 days, and a special court-martial conviction for a violation of UCMJ Article 86 for 44 days.  The Applicant’s conduct, which forms the primary basis for determining the character of his service, reflects his willful failure to meet the requirements of his contract with the U.S. Marine Corps.  Such conduct falls far short of that expected of a member of the U.S. military and does not meet the requirements for an upgrade of his characterization of service.  Relief is not warranted.

The Applicant contends his disciplinary problems were the result of stress caused by being the illness of his mother.  The NDRB recognizes that serving in the U.S. Marine Corps is challenging.  Our country is fortunate to have men and women willing to endure the hardships and sacrifices required in order to serve their country.  It must be noted that many Marines endure hardships similar to those of the Applicant.  It must further be noted that the vast majority of those members do not commit misconduct as a result of their problems.  Despite their hardships, these Marines are still able to serve honorably and therefore earn their honorable discharges.  In fairness to those members of the Marine Corps, commanders and separation authorities are tasked to ensure that undeserving Marines receive no higher characterization than is due.  The NDRB found that the Applicant's service was equitably characterized.  Relief denied.

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 Naval service.  The NDRB is authorized to consider post-service factors in the recharacterization of a discharge to the extent such matters provide a basis for a more thorough understanding of the Applicant’s performance and conduct during the period of service under review.  Examples of documentation that could be provided to the Board include proof of educational pursuits, verifiable employment records, documentation of community service, and certification of non-involvement with civil authorities.  The Board received and considered all of the Applicant’s submissions, including his letters of recommendation, Army National Guard records, and Marine Corps service records.  After careful consideration, the Board concluded the Applicant’s post-service conduct has been insufficient to mitigate his misconduct while in the Naval service.  Relief denied.

The Applicant requests a change in his Narrative Reason for Separation to “Hardship”.  The NDRB will change the reason for discharge if such a change is warranted.  The Applicant was discharged as a result of a conviction by special court-martial and the award of a bad conduct discharge.  No other Narrative Reason for Separation could more clearly describe why the Applicant was discharged.  To change the Narrative Reason Separation would be inappropriate.  Relief denied.

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.  The Applicant can provide any additional documentation to support any claims of post-service accomplishments or any other evidence related to his discharge at that time.  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