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

FOR OFFICIAL USE ONLY

ex-PVT, USMC
Docket No. MD05-00918

Applicant’s Request

The application for discharge review was received on 20050419.  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.  

Decision

A documentary discharge review was conducted in Washington, D.C. on 20060512.  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

No issues were 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
Emergency Medical Technician Certificate, expiration date of December 31, 2003
Certificate of Completion for completing S-290 Intermediate Fire Behavior, dtd April 26-28, 2004
Certificate of Completion for completing S-330 Task Force/Strike Team Leader, dtd April 19-21, 2004
Certificate of Completion for completing S-231 Engine Boss, dtd April 29, 2004
Certificate of Completion for completing Breath Alcohol Technician dtd July 11-12, 2004
Character Reference Letter from R_ S. B_, dtd April 7, 2004
Employment Appraisal (2 pgs), dtd April 18, 2004
Thank You Letter, (not dated and not addresses to a specific person) 
Certificate of Appreciation, dtd December 7, 2001
Personnel performance rating of Applicant for July 1 to September 20, 2004 (not signed)
Letter from Applicant, (not signed and not dated)

PART II - SUMMARY OF SERVICE

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

	Inactive:  USMCR (DEP)	19970702 – 19980628		COG
	Active:    None

Period of Service Under Review:

Date of Enlistment:  19980629		Date of Discharge:  20020905

Length of Service (years, months, days):

Active:    04  02  07  (Does not exclude lost time.)
	Inactive:  None

Time Lost During This Period (days):

	Unauthorized absence:  154 days
	Confinement:		  92 days

Age at Entry:  18 

Years Contracted:  4 

Education Level:  12				AFQT:  58

Highest Rank:  LCpl				MOS:  0331

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  3.3 (Extracted from SJA message dtd April 27 2001)		Conduct:  2.8 (Extracted from SJA message dtd April 27, 2001)

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

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:

970626:	Applicant briefed on and certified understanding of Marine Corps policy concerning illegal use of drugs.

990706:	Applicant to unauthorized absence at 0700 on 990706.

990805:	Applicant from unauthorized absence at 0700 on 990805 (29 days/surrendered).

990831:	NJP for violation of UCMJ, Article 86:  In that SNM did on or about 0700, 990706, absent himself from his appointed place of duty to wit: 1st Battalion, 4th Marines, 1ST Marine Division and did remain so absent until 0700, 990805.
Award:  Forfeiture of $537.00 pay per month for 2 months (suspended for 6 months), restriction and extra duty for 45 days, reduction to E-2.  Not appealed.

990901:	Applicant to unauthorized absence at 0700 on 990901.

991001:	Declared a deserter this date as of 0700, 990901.

000104:	Applicant from UA, 1615, 000104 (125 days/surrendered).

000503:	Joined Base Brig, Marine Corps Base, Camp Pendleton, California for confinement.

000514:	From confinement, restored to full duty (5 days).

000601:	Acknowledged understanding of eligibility but not recommended for promotion to LCpl for the month of May/Jun because of pending NJP.  Applicant chose not to make a statement.

000711:	Pre-trial confinement from 000711-000906 (58 days). 

000907:	Special Court Martial.
	Charge I:  violation of the UCMJ, Article 112a.
	Specification:  Did, on 000701, wrongfully distribute methamphetamine. 
Plea: Guilty.  Findings: Guilty.
	Sentence:  Confinement for 6 months, forfeiture of $670.00 pay per month for 6 months, Bad Conduct discharge.
	CA 010808:  Only so much of the sentence that provides for a bad conduct discharge, confinement for 105 days and forfeiture of $670.00 pay per month for six months is approved and, except for the bad conduct discharge, ordered executed.

001006:	Applicant released from confinement (29 days).
	
001215:	Applicant to appellate leave.

020509:	NMCCCA:  Affirmed findings and sentence.  

020731:	Appellate review complete.

020805:	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 20020905 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 introduced no decisional issues for consideration by the Board.

Relevant and material facts stated in a court-martial specification are presumed by the NDRB to be established facts.  With respect to a discharge or dismissal adjudged by a court-martial case tried under the Uniform Code of Military Justice, the action of the NDRB extends only to a change in the discharge or dismissal for purpose of clemency.

The Applicant’s case was considered under the pertinent standards of equity to determine if any factors in this particular case merited clemency.  The NDRB found the evidence of record did not contain sufficient mitigating or extenuating factors to offset the seriousness of the offenses for which the discharge was awarded.  In addition, the reason for discharge, convicted by special court-martial, is most appropriate.  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 the service.  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.  After a complete review of the entire record, including the evidence submitted by the Applicant, the Board determined that the discharge was appropriate and that the evidence of post-service conduct was found not to mitigate the conduct, which precipitated the discharge.  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 documentation to support any claims of post-service accomplishments or any additional evidence related to this 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 P1900.16F), effective 01 September 2001 until Present. 

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 112a, wrongful use, possession, etc. of controlled substances.

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