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

FOR OFFICIAL USE ONLY

 ex-PVT, USMC
Docket No. MD05-00917

Applicant’s Request

The application for discharge review was received on 20050503.  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 designated Disabled American Veterans as the representative on the DD Form 293.  Subsequent to the application the Applicant converted to a personal appearance hearing discharge review before the Board in the Washington, D.C. Metropolitan area.  The Applicant failed to respond by the deadline date to a letter requiring the Applicant to notify the Naval Discharge Review Board of intention to be present for the requested personal appearance hearing.  Therefore, a documentary review was conducted, and the Applicant is not eligible for further review by this Board.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20060131.  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 dtd 20050205:

“To Whom It May Concern:

As we go through life we all make our share of mistakes some minor some major.  Getting a bad conduct discharge from the United States Marine Corp.  Was my major mistake?  I’m asking to rectify the problem so I can insure that my family and I can have a better life.  I regret the way I left the Marine Corp., but I was not prepared nor could I handle the physical training, and the mental conditioning. I respect and honor those persons who have made our nation great, and I regret that I was not able to fulfill my duty.  I am asking you to upgrade my discharge from a bad conduct discharge to a general discharge under honorable conditions.  My father spent 23 years in the U.S. Navy and I know how important it is to have a strong military.  I am sorry I could not be apart of such an institution.”

Applicant’s Remarks:  I am sorry in which the way I left the Marine Corp.  I respect the men & women of all branches of the Services.  If by chance you would like me to come before the council please let me know. 

Thank you
[Signed] J_ J_

Subsequent issue submitted by Applicant on the attached document/letter to the Board dtd 20051020:

“As we go through life we all make our share of mistakes some minor some major.  Getting a bad conduct discharge from the United States Marine Corp was my major mistake.  I’m asking to rectify the problem so I can insure that my family and I can have a better quality of life.  I regret the way I left the Marine Corps., but I was not prepared nor could I handle the physical training, and the mental conditioning.  I respect and honor those persons who have made our nation great, and I regret that I was not able to fulfill my duty.  I am asking you to upgrade my discharge from a bad conduct discharge to a general discharge under honorable conditions.  My father spent 23 years in the U.S. Navy and so I know how important it is to have a strong military.  I am sorry I could not be a part of such an institution.  I have three kids now, and one is 100% disabled.  He has an I.Q. of about 14 to 16 and two girls that are trying to make it through school.
At some point in a person’s life the realize that some of the things they have done were wrong.  I want to get everything that is wrong “right”.  This is one of those things my walk with God is fixed, my family is good and I would like to fix this.  I want to come to D.C.  Before the Board and personal tell my story. At no cost to you.  Please review and grant me the things that helps me set thing correct in my life.  Thank you.”

Subsequent Remarks submitted by Applicant:

“I am truly sorry in which the way I left the United States Marine Corp.  Having a Bad Conduct discharge has not been good for anyone.  I regret what has happened.  No one can change the past, but we all must move forward in our lives.  Please help me move on.  Again, I respect the men and women of all branches of the services, but I feel as time goes on some were meant to be there and some were not.  If there is anything else I could do like come to the Naval Council Board and speak to you in person please contact me.”

Issues submitted by Applicant’s representative (Disabled American Veterans) on 20060118:

“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 General Under Honorable Conditions.

The FSM served on active service from September 23, 1990 to July 6, 1992 at which time he was discharged as a result of Courts Martial – Desertion.

The FSM makes his contentions as follows; “as we go through life we all make mistakes, some minor, some major. Getting a bad conduct discharge from the United States Marine Corp. was my major mistake. I am asking to rectify the problem so I can insure that my family and I can have a better quality of life. I regret the way I left the Marine Corp., but I was not prepared nor could I handle the physical training or the mental conditioning. I respect those persons who have made our nation great, and I regret that I was not able to fulfill my duty. I am asking you to upgrade my discharge from a bad conduct to a general under honorable conditions. My father spent 23 years in the Navy and so I know how important it is to have a strong military. I am sorry I could not be part of such an institution.”

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.”

Respectfully,

K_ L. G_
National Service Officer

Documentation

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

Service Related Documents (58 pages)
Criminal Record Check from Garland County Sheriff’s Department dtd, September 12, 2005
Employment Reference Letter (not signed, not dated)
Employment Reference Letter (not signed) dtd September 12, 2005
Service Related Documents (100 pgs) 

PART II - SUMMARY OF SERVICE

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

	Inactive:  USMCR (DEP)	19900221 – 19900924		COG
	Active:    None

Period of Service Under Review:

Date of Enlistment:  19900925		Date of Discharge:  19920706

Length of Service (years, months, days):

Active:    01  05  13  (Excludes lost time.)
	Inactive:  None

Time Lost During This Period (days):

	Unauthorized absence:  none
	Confinement:		  119 days

Age at Entry:  22

Years Contracted:  4 

Education Level:  10 (GED)			AFQT:  31

Highest Rank:  PVT				MOS:  9971

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  4.4 (1)			Conduct:  4.3 (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/As a result of a courts-martial (SPCM) - Other, authority:  MARCORSEPMAN Par. 1105.

Chronological Listing of Significant Service Events:

910107:	Applicant examined at the Mental Health Clinic, 52 Area Camp Pendleton CA.  Applicant threatening suicide because he can’t tolerate being trained to kill. 
	Provisional Diagnosis:  Depression and Suicidal Ideation.
	Axis I:  Occupational problem vs malingering
	Medical Officer comments: Applicant wants out of the USMC and is willing to do anything to get out.  Applicant is very low risk of suicide and a high risk of manipulative self-hurtful gesture to coerce the USMC into giving him a medical D.C. on his terms.  He says he will re fuse training and go to Brig before staying in.
	Recommend:  Fir for full duty.  Handle as admin prob. Not a med prob.

910108:	Applicant to the Base Brig, Marine Corps Base, Camp Pendleton, California, for pre-trial confinement.

910401:	Acknowledged understanding of eligibility but not recommended for promotion to PFC for the month of Apr because of Pending SPCM.  Applicant chose not to make a statement.

910424:	Acknowledged understanding of eligibility but not recommended for promotion to PFC for the month of May because of Pending SPCM.  Applicant chose not to make a statement.

910507:	Applicant from pre-trial confinement.

910507:	Special Court Martial 
	Charge I:  violation of the UCMJ, Article 86.
	Specification:  On 4 Jan 91, without authority, go from appointed place of duty.  Plea: Guilty.  Finding: Guilty, excepting the Arabic Numeral 4 in the fourth line and substituting the number 3, to read 3 January 1991. 
	Charge II:  violation of UMCJ, Article 90.
	Specification:  On 8 Jan 91, disobey the lawful command of Captain D.S. B_ USMC, to get in the vehicle to return to Range 314 and join his platoon for training.  Plea: Guilty.  Finding: Guilty.
Charge III:  violation of UMCJ, Article 92.
	Specification: On 8 Jan 91, was derelict in the performance of his duties by willfully failing to return to Range 314 and join his platoon for training.  Plea: Not Guilty.  Finding: Withdrawn.  After pleas but prior to findings, trial counsel made a motion to withdraw Charge III with underlying specification.  The Military judge granted the motion.  
	Additional Charge I:  violation of UCMJ, Article 91.
	Specification: On 3 Jan 91, disobey the lawful order of Gunnery Sergeant D.D. T_ USMC, to get his gear, fall out in formation, and do a seven mile hike.  Plea: Guilty.  Finding: Guilty, excepting the words, “get his gear, fall out in formation and,”.
	Additional Charge II:  violation of UCMJ, Article 92.
	Specification: On 3 Jan 91, was derelict in the performance of his duties by willfully failing to do a seven mile hike.  Plea: Not Guilty.  Finding: Withdrawn. After pleas but prior to findings, trial counsel made a motion to withdraw Additional Charge II with underlying specification.  The Military judge granted the motion.
	Sentence:  Confinement for 45 days, forfeiture of $500 per month for 2 months, Bad Conduct discharge.
	CA 910730: Sentence approved and ordered executed, except for bad conduct discharge.

910508:	Applicant to duty.
	
910517:	Applicant to appellate leave.

911023:	NMCCMR:  Affirmed findings and sentence.  

920102:	NC&PB clemency not granted; restoration denied.

920107:	Appellate review complete.

920207:	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 19920706 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).  

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.  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 representative submitted a request for equitable relief.   This 
former member further requests that the Board include provisions of SECNAVINST 5420.174D, as it pertains to post-service conduct, in assessing the merits of his application.  The NDRB is authorized to consider post-service factors in the recharacterization of a discharge.  However, 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 the civilian life subsequent to leaving the service.  Normally, to permit relief, a procedural impropriety or inequity must have been found to have existed during the period of enlistment in question.  Outstanding post-service conduct, 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, is considered.  The Applicant provided two unsigned letters as proof of his employment and a local criminal records check as documentation of his post-service.  The Applicant's efforts need to be more encompassing than those provided.  For example, the Applicant could have produced evidence of continuing educational pursuits, a verifiable employment record, and documentation of community service in order for consideration for clemency based on post-service conduct.  At this time, the Applicant has not provided sufficient documentation of post service character and conduct to mitigate the misconduct that resulted in his characterization of discharge.  Therefore, no relief will be granted.

The following is provided for the edification of the Applicant.  The Applicant failed to respond by the deadline date to a letter requiring the Applicant to notify the Naval Discharge Review Board of intention to be present for the requested personal appearance hearing.  Therefore, a documentary review was conducted, and the Applicant is not eligible for further review by this Board..  The Applicant may, however, petition the Board for Correction of Naval Records (BCNR), 2 Navy Annex, Washington, DC 20370-5100, concerning a change in the characterization of naval service, if he desires further review of his case.

Pertinent Regulation/Law (at time of discharge)

A.  Paragraph 1105, DISCHARGE ADJUDGED BY SENTENCE OF COURTS-MARTIAL, of the Marine Corps Separation and Retirement Manual, (MCO P1900.16D), effective 27 Jun 89 until 17 Aug 95.

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 90 (willfully disobeying superior commissioned officer) and 91 (willfully disobeying noncommissioned officer).

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