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

FOR OFFICIAL USE ONLY

 ex-PVT, USMC
Docket No. MD05-00763

Applicant’s Request

The application for discharge review was received on 20050321.  The Applicant requests the Discharge 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 designate a representative on the DD Form 293.   

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 application:

“Given today’s standards and options in the military my actions would have yielded an adverse outcome.  I believe by today’s standards my discharge could fall under a hardship condition and would have a different discharge characterization as well as a different Re-enlistment code.  I am requesting an upgrade because at the time I had a wife and young child and I was being deployed and did not want to leave them.  This could be classified as a family hardship.  My justification is information found on government web sites listing different RE codes and reasons.  I would like my discharge upgraded and RE code changed in order to apply for benefits for my family and re-enlist in the USMC reserves.  My service in the USMC was above standard and my PFT score as well as scores on the rifle range were above average. I was a highly motivated and truly dedicated to my service and my country.  I made one bad decision that I thought was right for my family and acted on my emotions rather than on my military instinct and the precise judgment of a United States Marine.  My mistake was accepting a BCD that I was offered in order to get out of the military to be with my wife and child.  It my offense was to happen today the outcome would have been different in regards to my separation, discharge characterization and RE code.  I ask that my service up until my offense be considered, as I had not had any trouble prior to my departure.  I ask that my RE code be upgraded to RE-1 and my discharge be upgraded to general under honorable conditions.”

Applicant’s letter dtd March 1, 2005

“To Whom it May Concern:

I am writing to request that my re-enlistment code be changed so I can re-enlist into the United States Marine Corps.  I would like to join the reserves and be given the opportunity to train and serve my country.

I served my country proudly for a short time and made a mistake that affects me still today.  I believe in my heart that I need to finish what I started 12 years ago.  At 18 it was difficult being a new father, a new husband and a new Marine all at the same time.  I did what was best for my marriage and what I thought was best for me at the time.  Unfortunately, my career as a Marine ended due to difficulties in my marriage and family hardships.  I regret the bad decision I made and this is why I am pursuing re-enlistment.

I have a good career as a salesman and I have the desire to pursue a degree at a local college.  I plan to attend school for mechanical engineering and would like to obtain use of my military benefits to do so.  I want to better my life for the good of my family, the Corps and also I want to be a soldier again and fulfill my commitment I defaulted on long ago.  I am 30 years old and in good shape and still have my Marine Corps discipline and desire to persevere.

I hope that this letter and supporting documents support my request for a change to my re-enlistment code for re-enlistment purposes.

Thank you,

J_ R. T_ (Applicant)”
 
Documentation

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

Letter of Recommendation from V.W. R_, dtd March 4, 2005, unsigned
Character Reference ltr from A_ M. P_ (former wife) dtd March 2, 2005, unsigned
Applicant’s DD Form 214 (2) 

PART II - SUMMARY OF SERVICE

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

	Inactive:  USMCR (DEP)	19911112 – 19920920		COG
	Active:    None

Period of Service Under Review:

Date of Enlistment:  19920921		Date of Discharge:  19951006

Length of Service (years, months, days):

Active:    02  07  06  
	Inactive:  None

Time Lost During This Period (days):

	Unauthorized absence:  123 days
	Confinement:		  35 days

Age at Entry:  18 

Years Contracted:  4 

Education Level:  12				AFQT:  71

Highest Rank:  LCpl				MOS:  3361

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  4.2 (7)			Conduct:  3.5 (6) 

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as stated on the DD Form 214):  Rifle Expert 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:

940517:	NJP for violation of UCMJ, Article 86 (3 specs):
	Specification 1: At MSSG-15 CamPen Ca, LCpl T_ did on or about 0700, 940425 until 0815, 940425 fail to go to the appointed place of duty.
	Specification 2: Did on or about 0700, 940502 until 0725, 940502 fail to go to the appointed place of duty.
Specification 3: Did on or about 0700, 940503 until 0940, 940503 fail to go to the appointed place of duty.
	Award:  Forfeiture of $466 per month for 2 months, restriction and extra duty for 45 days, reduction to E-2.  Forfeiture of $466 per month for 2 months is hereby suspended for a period of 6 months, at which time unless sooner vacated will be remitted without further action.  Not appealed.

940601:	Applicant to unauthorized absence at 1300 on 940601.

941004:	Applicant apprehended by civil authorities at 1140 on 941004 in Phoenix, Arizona.

941005:	Pre-trial restraint from 941005 to 941108 (36 days) in the Base Brig, Marine Corps Base Camp Pendleton, California.

941109:	Special Court Martial
	Charge I:  violation of the UCMJ, Article 86.
	Specification:  Did, on 1 Jun 94, w/o auth, abs himself fr his unit until aprnd on 4 Oct 94 (125 days).
	Findings:  to Charge I and specification thereunder, guilty.
	Sentence:  Confinement at hard labor for 6 months, forfeiture of $555 per month for 6 months, reduction to E-1, Bad Conduct discharge.
	CA 950302:  Sentence is approved and, except for bad conduct discharge executed, but execution of that portion of the sentence adjudging confinement in excess of 36 days is suspended for a period of 12 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.
		
941215:	Applicant to voluntary appellate leave.

950630:	NMCCCA affirmed findings and sentence.

950921:	Appellate review complete, no petition having been received.

951006:	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 19951006 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).  

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’s contends that “at the time I had a wife and young child and I was being deployed and did not want to leave them.  This could be classified as a family hardship.”  A hardship discharge is appropriate when several conditions are met.  MCO 1900.16F indicates that a hardship does not necessarily exist due to family separation and that family separation is normally encountered in the military service.  The Board found the Applicant’s issue without merit.  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.  An unfavorable “RE” code is, in itself, not a bar to reenlistment.  A request for a waiver can be submitted during the processing of a formal application for reenlistment through a recruiter.  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 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 in excess of 30 days and ended by apprehension.

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