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

FOR OFFICIAL USE ONLY

 ex-PVT, USMC
Docket No. MD05-00727

Applicant’s Request

The application for discharge review was received on 20050323.  The Applicant requests the Discharge Characterization of Service received at the time of discharge be changed to honorable.  The Applicant requests a documentary record discharge review.  The Applicant did not designate a representative on the DD Form 293.  Subsequent to the application, the Applicant obtained representation by Disabled American Veterans.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20051006.  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 as a Bad Conduct Discharge by reason of Court-Marital.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the attached document/letter to the Board:

“To the MARINE CORPS ,armed forces of the United States, discharge review board Or whom it might concern, this letter I send is to explain., the reason why I did what I did, in December of 94. When I was a kid I was a very poor kid, sometimes we wouldn’t have anything to eat, and I was physically and mentally abused from my father .,things were looking better by the time I was 5, but when I was 5 a lot of bad things happened to me, my mom and father divorced and my lather just disappeared, we just wouldn’t know where he was., I grew up without a father’s attention, never had an advice from him either, one day I came back home from work and my mom’s friend told me that my mother got raped and that she was in the hospital., the time flied and after my marine graduation I went to see my grandma, I was wearing my uniform and there he was my father, when I saw him again my hearth was full of forgiveness for him didn’t hold any bad feelings for him., before I joined the Marine Corps I used to go to a Christian church I was told, only god is entitled to judge human beings, so I forgave my father, and I spoke to him, and when I spoke to him, he told me how things were going really good for him that he had opened out a business and that he wanted me to be a part of it, and I told them I couldn’t that I had a responsibility and that I was o.k. with the life I was living at that time., then he said that he missed me a lot and that he wanted to make up by paying for my college if I was to help him out in his business, I went UA by new years day in 94, and I was happy that I was with him, but I was very uncomfortable for being in a UA status situation, after a few weeks everything changed he started treating me bad, he was only paying attention to his new family, and I was being treated like an employee, I had to wash cars sweep floors and I would come to a mirror every night and ask to my own self what have I done, what went thru my head when I went UA ,one day he said he was going to have stop paying for my school because it was a big expense for him and that he didn’t have to do it because no one ever did it for him, even though I was helping him out, so then I decided to get a job so I could pay for my school, but I knew that sooner or later I was going to end up paying for what I had done., I also met a girl in dec 94 when I was on leave right before I went UA she got pregnant from “me” and I found out until year 97 that the kid wasn’t mine., I went to special court martial and got a bad conduct discharge which did not help my life at all , it’s hard to live without honor, the mental abuse of a father and a bad future for a life, when I was young everything was easy for me ,I never looked at the consequences of a bad discharge was going to bring to my life, now I have 4 years working for a major phone company in Chicago, and also going to
college but I always wanted to work for the government instead, I look at state troopers, ins, cops, detectives, us customs and I say to myself if I only had the chance to go back in time , and be able to change my past sometimes I just wish I had the chance to go to combat and just died in it, it could be better than being living dead ( or without honor)., god knows I did it for the love for my father and the intention to spend the time I never did when I was a kid and a teenager ,what’s ironic is that I have not seen him since year 97, I never requested a review for a discharge upgrade because I didn’t know I could do this till mom showed me a letter from 96 she was holding for me, in her memory things, she couldn’t give it to me back then because I was in Texas at that time., I only wanted to make my father proud, I don’t know what for anymore, how can I miss someone that never loved me, I hope you consider your determination with all due respect and if I have to appear at court I will and if I have the chance to become a marine again so be it, god bless my corp my country and my god semper fi

Sincerely, A_ C_.
[signed] Applicant”

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

“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 his request for a discharge upgrade of his current Bad Conduct discharge to that of Honorable.

The FSM served on active service from September 9, 1994 to September 26, 1996 at which time he was discharged as a result of a Court Martial (SPCM) Other. 

The FSM requests 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.

He believes that the statement he provided, with his application, dated March 9, 2005 will exude historical insight for the Board’s review of the issue of an upgrade of the current discharge and the circumstances that led to that characterization.

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.

Respectfully,
[signed]
K_ L. G_
National Service Officer”

Documentation

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

Applicant’s DD Form 214
Letter from Applicant

PART II - SUMMARY OF SERVICE

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

	Inactive:  USMCR (DEP)	19940629 – 19940911		COG
	Active:    None

Period of Service Under Review:

Date of Enlistment:  19940912		Date of Discharge:  19960926

Length of Service (years, months, days):

Active:    01  03  22
	Inactive:  None

Time Lost During This Period (days):

	Unauthorized absence:  264 days
	Confinement:		  34 days

Age at Entry:  19 

Years Contracted:  4 

Education Level:  12				AFQT:  32

Highest Rank:  PVT				MOS:  0300

Final Enlisted Performance Evaluation Averages (number of marks):
[Extracted from SJA message dtd January 19, 1996]
Proficiency:  4.2 (1) 			Conduct:  2.1 (1) 

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as stated on the DD Form 214):  Rifle Sharpshooter Badge, National Defense Service Medal.

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:

941214:	Applicant joined School of Infantry, Marine Corps Base, Camp Pendleton, CA for temporary instructions.

941230:	Applicant to unauthorized absence at 1940 on 941230.

950129:	Applicant declared a deserter.

950922:	Applicant from unauthorized absence at 0845 on 950922 (264days/ apprehended).  

950922:	Applicant apprehended by U.S. Customs, Hidalgo, TX.  Returned to military control 950922 and retained.

950923:	Applicant to pretrial confinement.

951026:	Special Court Martial [trial date 951026]
	Charge I:  violation of the UCMJ, Article 86.
	Specification:  In that Private A_ C_ (Applicant), U.S. Marine Corps, Student Administration Company, headquarters and Service Battalion, School of Infantry, Marine Corps Base, Camp Pendleton, CA, did, on or about 30 December 1994, without authority, absent himself from his organization, to wit: School of Infantry, Marine Corps Base, located at Marine Corps Base, Camp Pendleton, CA, and did remain so absent until he was apprehended on or about 22 September 1995.
	Findings:  to Charge I and specification thereunder, guilty.
	Sentence:  Confinement for 60 days, Bad Conduct discharge.
	CA 960126:  The sentence approved and ordered executed, except for bad conduct discharge.
	
951026:	To confinement.

951026:	Applicant requested voluntary appellate leave.

951121:	Applicant authorized voluntary appellate leave.

960708:	NMCCCA:  Affirmed findings and sentence.  

960918:	Appellate review complete.

960926:	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 19960926 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).  After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, the Board found that the Applicant’s issues were insufficient to merit clemency (C).

The Applicant desires an upgrade in order to reenter the Marine Corps or seek government employment.  The Board recognizes the Applicant’s motivation to become a Marine again, yet it is worth reminding the Applicant that the factual basis for discharge was unauthorized absence from 19941230 to 19950922 (264 days).  The Applicant only returned to duty after being apprehended by U.S. Customs officials.  The action of the NDRB is restricted to upgrades based on clemency when a discharge is adjudged by a court-martial case.  Clemency is an act of leniency that reduces the severity of the punishment imposed.  Relevant and material facts stated in a court-martial specification are presumed by the NDRB to be established facts.  After a thorough review of the Applicant’s record and issues submitted, the Board determined that clemency is not warranted.  The sentence awarded the Applicant at his court-martial was appropriate for the offense he committed.  The Applicant is advised that the Board has no jurisdiction over reenlistment, reentry, or reinstatement into any of the Armed Forces.  A request for a waiver can be submitted during the processing of a formal application for reenlistment through a recruiter.  Further, the Board has no authority to upgrade a discharge for the sole purpose of enhancing employment opportunities.  These issues do not serve to provide a foundation upon which the Board can grant relief.  Relief on this basis is denied.

The following is provided for the Applicant’s edification.  While 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 Marine Corps, the Board 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.  Verifiable proof of any 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.  Evidence of continuing educational pursuits, verifiable employment records, documented community service, and certification of non-involvement with civil authorities are examples of documentation that should have been provided to receive consideration for relief based on post-service conduct.  At this time, the Applicant did not provided any post-service documentation for consideration.  No relief is granted on this basis.

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 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 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part II, Para 205(2), Jurisdictional Limitations Authority for Review of Discharges.

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