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

FOR OFFICIAL USE ONLY

ex-PVT, USMC
Docket No. MD05-00996

Applicant’s Request

The application for discharge review was received on 20050524.  The Applicant requests the Discharge Characterization of Service received at the time of discharge be changed to honorable.  The Applicant requests a personal appearance hearing discharge review before a traveling panel closest to Atlanta, Georgia.  The Applicant did not designate a representative on the DD Form 293.  In the acknowledgement letter, the Applicant was informed that the Naval Discharge Review Board (NDRB) does not travel; all hearings are held at the Washington Navy Yard Washington, D.C.  In response to the Scheduling Notice the Applicant requested to convert the case to a documentary review.  

Decision

A documentary discharge review was conducted in Washington, D.C. on 20060628.  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:

“My reasons for a discharge upgrade start with “convenience of the government”.  Also, I would like a reenlistment code change and corresponding Separation Program Number/Designator change.  The issues that explain why an upgrade might be warranted are as follows: 1) I asked, at the time of courts-martial, to not be discharged.  All I wanted to do was be a Marine. 2) My average conduct and efficiency rating/behavior and proficiency marks were good. 3) I received awards and decorations. 4) I received letters of recommendation. 5) I had combat service. 6) My record of promotion she showed I was a good service member. 7) There were other acts of merit. 8) Ihad only minor offenses for NJP and Article 15 review. 9) My record of courts-martial convictions indicates only minor offenses. 10) My record of UA indicates only isolated and minor offenses. 11) My ability to serve was impaired by my youth and immaturity. 12) My discharge was based on many offenses, but they were mostly only minor offenses. 13) When I got back from oversea duty, I had a hard time readjusting to stateside duty.

Most of all.  I believe that I was a good Marine and ran into trouble after the first Gulf War.  Just want to clear up some of the mess from my past and find out if there is a possibility of serving my country again.”

Documentation

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

Applicant’s DD Form 214
United States Navy-Marine Corps Court of Military Review  (3 pgs), dtd December 13, 	1993

PART II - SUMMARY OF SERVICE

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

Inactive:  USMCR (DEP)	19890318 – 19900212		COG
	Active:    None

Period of Service Under Review:

Date of Enlistment:  19900213		Date of Discharge:  19940601

Length of Service (years, months, days):

Active:    04 03 16  (Does not exclude lost time.)
	Inactive:  None

Time Lost During This Period (days):

	Unauthorized absence:  75 days
	Confinement:		  132 days

Age at Entry:  18 

Years Contracted:  4 

Education Level:  12				AFQT:  66

Highest Rank:  PFC				MOS:  0311

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  3.7 (6) 			Conduct:  2.8 (7) 

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

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:

900209:	Enlistment waiver for misdemeanor (shoplifting, 2 months probation).

900622:	Applicant to unauthorized absence at 0700 on 900622.

900702:	Applicant from unauthorized absence at 2300 on 900702 (10 days/surrendered).

900718:	NJP for violation of UCMJ, Article 86:  Unauthorized absence from 0700, 900622 to 2300, 900702 from Forming CO, ITBn, SOI, MCB, CamLej.
	Award:  Forfeiture of $189 per month for 1 month (1 month suspended for 1 month), restriction and extra duty for 14 days.  Not appealed.

910926:	Counseling:  Advised of deficiencies in performance and conduct (Involvement with civilian authorities.  Specifically receiving a DWI in Onslow Cnty on 910908, (BAC .11%).  Further counseled regarding my habitual unsatisfactory conduct as a Marine both on and off duty.), necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

911018:	Summary Court-Martial.
	Charge I: violation of the UCMJ, Article 92 (4 specs):
	Specification 1: Wearing inappropriate civilian attire in Jacksonville on 910418.  Findings: Guilty; Specification 2: Underage consumption of alcohol 910825 at MCAS New River, NC.  Findings: Guilty; Specification 3: Underage consumption of alcohol 910908 in Jacksonville, NC.  Findings: Guilty; Specification 4: Wrongful possession of (1) M-100 pyrotechnic on 910825 at MCAS, New River.  Findings: Guilty; Specification 5: Wrongful possession of (1) 12 ga. Shotgun 910825 at MCAS, New River.  Findings: Guilty; Specification 6: Wrongful possession of (1) K-Bar Knife on 910825 at MCAS, New River.  Findings: Guilty
	Charge II: violation of the UCMJ, Article 107: Made a false statement to Capt G_ on 910826 that “I was never at Jacksonville Mall on 910824.  Findings: Guilty
	Charge III: violation of the UCMJ, Article 111: Drunk driving on 910825 at MCAS, New River, NC with a blood alcohol content of .17%.  Findings: Guilty
	Charge IV: violation of the UCMJ, Article 134: Possession of an altered AFID card with the birthdate altered on 910825.  Findings:  Guilty
	Charge V: violation of the UCMJ, Article 86: UA 0501, 910927 to 0555, 910927 from A Cq, 2d LAI Bn.  Findings:  Guilty
	Finding: to Charge and the specification thereunder, guilty.
	Sentence: Forfeiture of $502.00 for 1 month, confinement at hard labor for 29 days, reduced to E-1.
	CA action 911018:  The sentence approved and ordered executed.

911018:	Joined Marine Corp Base Brig, Marine Corp Base, Camp Lejeune, NC for confinement.

911220:	Applicant admitted to inpatient alcohol rehabilitation program at Alcohol Rehabilitation Department (ARD), Naval Hospital Camp Lejeune, NC.  The Applicant was referred to the ARD by CDAC, MCB Camp Lejeune, NC for the treatment of alcohol dependence.  

920117:	Applicant completed the inpatient alcohol rehabilitation program at the ARD.  Admission diagnosis was alcohol dependence.  Discharge diagnosis is alcohol dependence – in remission.  The Applicant is discharged to full duty.  The Applicant will report to the unit DACO within 24 hours of discharge.  The Applicant will report to the Command Drug/Alcohol Center within 72 hours of discharge.  A detailed AFTERCARE PLAN will accompany the Narrative Summary within 30 days.  The Applicant is to attend 3 AA Meetings weekly.  The Applicant will be in Aftercare status for 12 months.

920211:	NJP for violation of UCMJ, Article 86 (2 specs): 
	Specification 1: In that Pvt D_, on or about 1130, 920204, did absent himself from his appointed place of duty, to wit: Veh 659 at the 2d LAI Bn Ramp Facility.
	Specification 2: In that Pvt D_, on or about 0915, 920205, did absent himself from his appointed place of duty, to wit: Veh 659 at the 2d LAI Bn Ramp Facility.
Violation of UCMJ, Article 92 (2 specs): 
Specification 1: In that Pvt D_, did, on or about 1130, 920204, disobey a lawful order from HM3 E_ to return to his place of duty.
Specification 2: In that Pvt D_, did, on or about 0915, 920205, disobey a lawful order from Cpl M_ to report to the Battalion Aid Station.
Violation of UCMJ, Article 107: In that Pvt D_, did, on or about 920205, make a false official statement by stating to his Platoon Sgt, Sgt K_, that “he was sick in quarters on 920204 and that the chit ended at 0730, 920205” further stated “the SIQ chit is in my room” or words to that effect.
Violation of UCMJ, Article 115: In that Pvt D_, did, on or about 1130, 920204, after being given a full duty status by the Battalion Aid Station, did feign illness by failing to report to duty and by placing himself in Sick in Quarters. 
	Award:  Forfeiture of $169 per month for 1 month, restriction and extra duty for 14 days.  Not appealed.

920224:	UA/AWOL from 1101, 920224.  Declared deserter due to escape from custody.  Declared deserter as of 1201, 920224, and dropped from rolls.

920429:	Applicant from UA/AWOL at 1530, 920429 when surrendered.

920429:	Pre-trial confinement from 920429 to 920623 (55 days) credited toward the period of confinement approved.

920624:	Special Court Martial
	Charge I:  violation of the UCMJ, Article 86, 
Specification: UA/AWOL 1101, 920224 to 1530, 920429.  Plea: Guilty. Findings:  Guilty.
Charge II:  violation of the UCMJ, Article 95,
Specification: Escape custody enroute to Base Brig, CamLej, on or about 1100, 920429.  Plea: Guilty. Findings:  Guilty.
	Charge III:  violation of UMCJ, Article 121, 
	Specification:  Stole 1 belt of blank 7.62 mm rounds from 2d LAI Bn. Plea: Not Guilty. Findings:  Not Guilty. 
Charge IV:  violation of the UCMJ, Article 128, 
Specification: Assaulted his chaser Cpl C_, J.M. by pushing him in the chest in order to escape from custody.  Plea: Guilty. Findings:  Guilty.
Charge V: violation of UCMJ, Article 134, 
Specification: Did break restrictions, on or about 2200, 920222, when he was found to by driving on revoked license by the Jacksonville, Police Department in Jacksonville, NC.  Plea: Guilty. Findings:  Guilty.
	Sentence:  Confinement at hard labor for 90 days, forfeiture of $500 per month for 3 months, Bad Conduct discharge.
	CA 930114:  The sentence approved and with the exception of the bad conduct discharge is ordered executed.

920624:	Applicant waived clemency review.

920712:	From confinement, restored to full duty. 
	
920717:	Acknowledged understanding of eligibility but not recommended for promotion to PFC for the month of Aug 92 due to BCD.  Applicant chose not to make a statement.

920803:	Applicant to appellate leave.

930114:	Special Court-Martial Convening Authority Action and Order No. DB121-92, signed by the Convening Authority, ordered the following action: “In the Special Court-Martial of Private J_ C. D_ (Applicant)(SSN deleted), U.S. Marine Corps, tried on 24 June 1992, the sentence is approved and, except for the bad conduct discharge, will be executed.”  Further, the Convening Authority ordered that the record of trial be forwarded to the Judge Advocate General of the Navy for review by the U.S. Navy – Marine Corps Court of Military Review.

931213:	NMCCCA:  Affirmed findings and sentence.  

940530:	SJA recommended the bad conduct discharge be executed.

940601:	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 19940601 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 Board determined that the DD Form 214 issued to the Applicant, with a date of discharge of 19930114, character of service of under other than honorable conditions, and a narrative reason for separation of misconduct -minor disciplinary infractions, was not valid.  The Applicant was not administratively separated with the characterization of service and the reason for discharge listed on that DD Form 214.  On 19930114, Special Court-Martial Convening Authority Action and Order No. DB121-92, signed by the Convening Authority, ordered the following action: “In the Special Court-Martial of Private J_ C. D_ (Applicant)(SSN deleted), U.S. Marine Corps, tried on 24 June 1992, the sentence is approved and, except for the bad conduct discharge, will be executed.”  Further, the Convening Authority ordered that the record of trial be forwarded to the Judge Advocate General of the Navy for review by the U.S. Navy – Marine Corps Court of Military Review.  On 19940601, Supplementary Special Court-Martial Order No. DB053-94, signed by the GCMCA in the Special Court-Martial of Private J_ C. D_, (Applicant) (SSN deleted), U.S. Marine Corps, ordered the bad conduct discharge executed and further specified that the Supplementary Special Court-Martial Order No. DB053-94 is the authority for executing the bad conduct discharge.   

In response to the Applicant’s issues, 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 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 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 86, unauthorized absence for more than 30 days, and Article 95, escape from custody.

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