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

 ex-PVT, USMC
Docket No. MD05-00513

Applicant’s Request

The application for discharge review was received on 20050131.  The Applicant requests the characterization of service received at the time of discharge be changed to entry level separation or uncharacterized.  The Applicant requests a documentary record discharge review.  The Applicant listed Disabled American Veterans as his representative on the DD Form 293.

Decision

A documentary discharge 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 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.  "My discharge was inequitable because it was based on one isolated incident."

2.  "My purpose of obtaining an upgrade of my discharge is to get another opportunity to serve my country.”

3.  "Please consider my bad decision making as a reason for me losing my grasp of my dream to be a US MARINE please help me get that back”

Additional issues submitted by Applicant’s representative (Disabled American Veterans):

4.  “Dear Chairperson:

After a review of the Former Service Members (FSM) DD Form 293 Application for the Review of Discharge or Dismissal from the Armed Forces of the United States and all of evidence assembled for review, we continue to note the contention of the appellant in a request for a discharge upgrade of the current Bad Conduct Discharge to that of Entry Level Separation or a General Under Honorable Conditions.

The FSM served on active service from December 30, 1996 to September 26, 2000 at which time he was discharged by reason of a Bad Conduct Discharge.  

On review of the application submitted, the applicant denotes, that he believes the discharge to be inequitable because it was based on one isolated incident and a review of his service period performance will justification in change of discharge as requested.

An impropriety will be held to exist when there is an error of fact, law, procedures, or discretion associated with the discharge at the time of issuance; and that the rights of the applicant were prejudiced thereby ( such error shall [and does] constitute prejudicial error, as we believe there is doubt that the discharge would have remained the same if the error had not been made, to include any changes in Navy / Marine Corp. policy made expressly retroactive to this type of discharge under consideration. See, 32 CFR 724.902.

As the representative, we ask that consideration be given to equitable relief, as this is a matter that involves a determination whether a discharge should be changed under the equity standards, to include any issue upon which the applicant submits to the Board’s discretionary authority, under SECNAVIST 5420.174D.

We ask for the Board’s careful and sympathetic consideration of all the evidence of record used in rendering a fair and impartial decision.  These issues do not supersede any issues previously submitted by the applicant.”

Documentation

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

Applicant’s DD Form 214
Criminal Record Report (municipal) dated February 17, 2005
Criminal Record Report (county) dated February 22, 2005
Reference Letter from J_ N_, dated March 10, 2005
Reference Letter from J_ G. B_ (undated)
Copy of FedEx Receipt from Applicant to NCPB, transaction date October 27, 2003
Information from Congressman R_ H_ (5 pages)
Letter from National Personnel Record Center to Congressman R_ H_, dated April 18,
    2005

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: USMCR(J)		960409 - 961229	COG

Period of Service Under Review:

Date of Enlistment:  961230		Date of Discharge:  000926

Length of Service (years, months, days):

	Active:    02  11  05 (Does exclude lost time)
	Inactive:  None

Age at Entry:  21			Years Contracted:  4 

Education Level:  12			AFQT:  42

Highest Rank:  PFC			MOS:  0311

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  3.4 (7)			Conduct:  2.4 (8)

Military Decorations:  None

Unit/Campaign/Service Awards:  REB

Days of Unauthorized Absence:  296

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:

971112:	Applicant to unauthorized absence status at 0801 from 3d Battalion, 5th Marines, 1st Marine Division, Camp Pendleton, CA.  [Three dates of start of UA period are indicated in the Applicant's record; this date taken from the specification to charge preferred to Special Court-Martial as specification is considered a statement of fact.]

971229:	Applicant declared a deserter.

980921:	Applicant surrendered at 2140 at 2d Battalion, 5th Marines, 1st Marine Division, Camp Pendleton, CA.  Returned to military control and retained.
	
981228:	Special Court-Martial.
	Charge I:  violation of the UCMJ, Article 86;
	Specification: On or about 971112 without authority, absent himself from his unit, until on or about 980921.
	Findings:  to Charge I and specification 1 thereunder, guilty.   
	Sentence:  Confinement for 75 days, forfeiture of $617.00 pay per month for 3 months, reduction to E-1, and a bad conduct discharge.
	CA 990506:  Sentence approved and, except for the bad conduct discharge, ordered executed, but execution of that portion of the sentence adjudging all confinement 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.

990122:	To voluntary appellate leave.

991214:	Navy and Marine Corps Court of Criminal Appeals affirmed findings and sentence.

000501:	To involuntary appellate leave.

000918:	Navy-Marine Corps Appellate Review Activity states appellate review is now considered complete.

000926:	Special Court-Martial Supplemental Order:  Article 71c, UCMJ, having been complied with, Bad Conduct Discharge is ordered executed.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20000926 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, 2, 3, and 4:  The Applicant contends that the discharge adjudged at his special court-martial was inequitable because it was based on one isolated incident, that his immaturity at the time mitigates his misconduct, and that he desires another opportunity to serve his country.  In response to these issues, the Applicant is advised that the actions of the NDRB in such cases are restricted to upgrades based on clemency.  Clemency is an act of leniency that reduces the severity of the punishment imposed.  The NDRB presumes relevant and material details stated in the court-martial specifications to be established facts but will thoroughly review an Applicant’s record and issues submitted to determine if clemency is warranted.  After review of the Applicant's records, the Board found that the Applicant was in an unauthorized/deserter status for approximately ten months and that the sentence awarded the Applicant at his court-martial was appropriate for such an offense.  Clemency is therefore not warranted and relief on this basis is 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 the service.  However, the NDRB is authorized to consider outstanding post-service factors in the recharacterization of a discharge, to the extent that such matters provide a basis for a more thorough understanding of the Applicant’s performance and conduct during the period of service under review.  Verifiable proof of post-service accomplishments must be provided in order for the Applicant to claim post-service conduct and behavior as a reason to upgrade a less than honorable discharge.  Examples of documentation that should 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 reviewed the two criminal record reports and two reference letters submitted by the Applicant but, at this time, he has not provided sufficient documentation for the Board to consider an upgrade.  Relief on this basis is 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 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