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

FOR OFFICIAL USE ONLY

 ex-PVT, USMC
Docket No. MD05-01091

Applicant’s Request

The application for discharge review was received on 20050614.  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 20051206.  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:

“Because of an unjust military discharge.  All statements have been typed out.”

Item #16 Remarks:  “I write to this board in hopes that my discharge can be upgraded to an honorable discharge.  I write to the board this way because of my illnesses and my service connected injuries, Thank your Sirs for your time in this matter.”

Documentation

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

Applicant’s DD Form 214
Applicant’s DD Form 215
Letter of Response from BCNR dtd May 19, 2005
Letter of Response from the Office of the Secretary of the Navy dtd February 11, 2005
Action Memorandum from Director, Secretary of the Navy White House Liaison Office 	dtd February 11, 2005
Letter to President G_ W. B_ dtd October 9, 2004
Listing of University Hospital Medications, November 9, 2004
Medical Record Documents (40 pages)
Service Record Documents (44 pages) 

PART II - SUMMARY OF SERVICE

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

Inactive:  USMCR 		19920228 – 19920611		ELS
	Inactive:  USMCR (DEP)	19920612 – 19920615		COG
	Active:    None

Period of Service Under Review:

Date of Enlistment:  19920616		Date of Discharge:  19970516

Length of Service (years, months, days):

Active:    04  03  08  (Does not exclude lost time.)
	Inactive:  None

Time Lost During This Period (days):

	Unauthorized absence:  200 days
	Confinement:		  37 days

Age at Entry:  19

Years Contracted:  4 

Education Level:  12				AFQT:  33

Highest Rank:  LCpl				MOS:  0311

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  4.0 (8) 			Conduct:  3.9 (8)

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as stated on the DD Form 214):  Rifle Marksman Badge, National Defense Service Medal, Sea Service Deployment Ribbon, United Nations Medal, Armed Forces Expeditionary (OP Quick Draw/Continue Hope Somalia), Meritorious Unit Commendation, Marine Corps Expeditionary Medal (Rwanda).

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:

941209:	NJP for violation of UCMJ, Article 107: On or about 1800, 21NOV94, with intent to deceive, make to Capt M. R. R_ an official statement, to wit: ”Sir, I have not seen LCpl A_ for his 1800 muster”. or word to that effect, which was then known by SNM to be false, Bldg #620597, CamPen.
Violation of UCMJ, Article 107: On or about 1745, 21NOV94, with intent to deceive, did sign an official record, to wit: signed the restraint muster record of LCpl C. V. A_ for 2000 and 2145, which record was false in that the restrained Marine was not present at the times SNM signed, and was then known by SNM to be false, Bldg #620597, CamPen.
Violation of UCMJ, Article 92: On or about 0700, 22NOV94 knowing of his duties, was derelict in the performance of those duties in that he willfully allowed LCpl C.V. A_ to sign his restraint muster record for 2000 and 2145, 21NOV94 at 0700, 22NOV94, Bldg #620597, CamPen.
Violation of UCMJ, Article 86: On or about 1430 to 1730, 21NOV94 UA/AWOL from appointed place of duty, to wit: Bldg #620597, CamPen. 
	Award:  Forfeiture of $238 per month for 1 month, restriction and extra duty for 14 days.  Forfeiture of $238 per month for 1 month suspended for 6 months).  Not appealed.

950127:	Forfeiture of pay awarded at NJP on 941209 vacated due to continued misconduct.

950127:	Acknowledged understanding of eligibility but not recommended for promotion to Cpl for the month of Feb 95 Promotion period because of a recent NJP on 941213.  Applicant chose not to make a statement.

950127:	Counseled for deficiencies in performance and conduct.  [Lack of discipline, lack of judgment, and lack of integrity.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

950131:	Psychiatric Examination at Naval Hospital, Camp Pendleton CA.  Applicant examined due to suicidal ideation and 2 suicide gestures.  
	Diagnosis:  Axis I: Adjustment disorder due to life circumstances problem (occupational, finances).
	Axis II:  No diagnosis.
	Axis III: Lower back pain due to motor vehicle accident 6 Jan 95.
	Recommendations: Applicant is fit for full duty and responsible for his actions.  No evidence of major mental illness to character pathology though the Applicant does have significant depressive traits in context of multiple stressors.  He could benefit from follow-up counseling.
	Applicant not currently suicidal or homicidal ideation, plan or intent, and contracted for safety.

950203:	NJP for violation of UCMJ, Article 91: Having received a lawful order from SSgt L_, a Staff noncommissioned officer, then known by SNM to be a Staff noncommissioned officer, to have his uniformed cleaned and altered, did on or about 0700, 950123 willfully disobey the same, Bldg #620597, CamPen.
Violation of UCMJ, Article 91: Having received a lawful order from SSgt L_, a Staff noncommissioned officer, then known by SNM to be a Staff noncommissioned officer, to have his uniform at work, did on or about 0700, 950123 willfully disobey the same, Bldg #620597, CamPen.
Violation of UCMJ, Article 92: Willfully disobeyed MCO P1020.34E, to wit: SNM did not shave his facial hairs, Bldg #620597, CamPen. 
Violation of UCMJ, Article 86: On or about 0601 to 0630, 24JAN95 UA/AWOL from appointed place of duty, to wit: Co E, 2d Bn, 5th Mar, CamPen.
	Award:  Forfeiture of $478 per month for 1 month, restriction and extra duty for 45 days, reduction to E-2.  Red to PFC, E-2, forf of $478.00 pay per month for 1 month, and 31 days restriction suspended for 6 months. Not appealed.

950420:	Acknowledged understanding of eligibility but not recommended for promotion to Cpl for the month of May 95 Promotion period because of being on weight control.  Applicant chose not to make a statement.

950825:	Applicant to unauthorized absence on 950825.

950925:	Applicant declared a deserter on 960925 having been an unauthorized absentee since 0630, 950825 from 2d Battalion, 5th Marines Camp Pendleton, CA.

960312:	Applicant IHCA.

960312:	Applicant from unauthorized absence on 960312 (200 days/apprehended).  

960314:	Joined the Base Brig, MCB. CAMPEN, CA for confinement.

960418:	Special Court Martial
	Charge I:  violation of the UCMJ, Article 86.
	Specification:  Unauthorized absence from 25 Aug until apprehended on or about 12 March 96 [200 days/A.].
	Plea: Guilty.
Findings:  Guilty.
Charge II:  violation of UMCJ, Article 87.
	Specification:  Did, on or about 7 Nov 95 miss movement through design.
	Plea: Guilty.
Findings:  Guilty.
	Sentence:  Confinement for 6 months, forfeiture of $583 per month for 6 months, reduction to E-1, Bad Conduct discharge.
	CA 960828:  The sentence approved and, except for the bad conduct discharge, ordered executed, but execution of that portion of the sentence adjudging confinement in excess of 100 days is suspended for a period of 12 months from the date of this action.  The accused will be credited 17 days against the sentence to confinement.  Pursuant to the terms of the pretrial agreement, the deferment of all unexecuted confinement is hereby rescinded effective this date. 

960418:	Applicant waived right to clemency review.

960418:	From confinement, restored to full duty. 

961029:	Applicant to appellate leave.

970221:	NMCCA:  Affirmed findings and sentence.

970509:	Appellate review complete.

970516:	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 19970516 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 Veterans Administration determines eligibility for post-service benefits not the Naval Discharge Review Board.  There is no requirement or law that grants recharacterization solely on the issue of obtaining Veterans' benefits and this issue does not serve to provide a foundation upon which the Board can grant relief.  

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, and Article 87, missing movement through design.

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