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

FOR OFFICIAL USE ONLY

 ex-Pvt, USMC
Docket No. MD05-01095

Applicant’s Request

The application for discharge review was received on 20050615.  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.  Subsequent to the application, the Applicant obtained representation from the Veterans of Foreign Wars.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20051221.  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:

“This mark that I have against me, has burdened me for nearly 10 years now.  I ruined my military career and it was by far the biggest mistake that I have ever made.  I love my country and would die today to protect it.  By striking CPL B_ I let down the Corps and my country.  I realize that today more than you can even imagine.  I am deeply sorry for what I done and ask for the mercy of those reviewing this case to please allow an upgrade.  I also want to try and re-enlist back into the Corps and if that’s not possible the National Guard.  I hate to see those boys dying over there, while I’m sitting here.  Please give me another chance; I will not let you or my country down again.  OOH!  RAH!”

Additional issues submitted by Applicant’s representative (Veterans of Foreign Wars):

“Propriety or Equity Issue(s):  The veteran’s judgment was impaired at the time he committed the offenses for which he was administratively separated.

Statement:  In accordance with 32 CFR § 724, and SECNAVINST 5420.174D, the Veterans of Foreign Wars submits to the Naval Discharge Review Board (NDRB) the above issue and following statement in supplement to the Applicant’s petition.

The applicant contends that his in-service diagnosed mental condition (Alcohol Dependence) impaired his judgment and led to his numerous NJPs.  The mental health evaluation of 14 September 1995 also revealed that the applicant came from a dysfunctional family- his mother having killed his father after several years of physical abuse.

The Veterans of Foreign Wars’ express purpose in providing this statement and any other submittals or evidence filed is to assist this applicant in the clarification and resolution of the impropriety or inequity raised.  To that end, we rest assured that the NDRB’s final decision will reflect sound equitable principles consistent in law, regulation, policy and discretion as promulgated by title 10 USC § 1553, and set forth in 32 CFR § 724 and SECNAVINST 5420.174D.

This case is now respectfully submitted for deliberation and disposition.”

Documentation

Only the service record book and medical record were reviewed.  The Applicant did not provide additional documentation for the Board’s consideration.

PART II - SUMMARY OF SERVICE

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

	Inactive:  USMCR (DEP)	19940218 - 19940221	COG
	Active:    None

Period of Service Under Review:

Date of Enlistment:  19940222		Date of Discharge:  19970725

Length of Service (years, months, days):

Active:    03  03  11  (Excludes lost time)
	Inactive:  None

Time Lost During This Period (days):

	Unauthorized absence:  None
	Confinement:		  53 days

Age at Entry:  20

Years Contracted:  4

Education Level:  12				AFQT:  54

Highest Rank:  PFC				MOS:  3361

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  4.3 (6)				Conduct:  3.6 (6)

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as stated on the DD Form 214):  National Defense Service Medal, 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:

950314:	Counseled for deficiencies in performance and conduct.  [Conduct unbecoming of a Marine by being frequently involved in several documented blotter (PMO) entries.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

950418:	Applicant evaluated by SACC.  [Extracted from 950502 counseling.]

950420:	NJP for violation of UCMJ, Article 128, 134 and 134, UCMJ: On 5 Mar 1995, unlawfully assaulted PFC A_ by grabbing him by the testicles and took him outside of New Sorentos nightclub and slapped him in the face, was drunk and disorderly, and impersonating a noncommissioned officer of the Marine Corps.
	Award:  Forfeiture of $427 per month for 2 months, restriction and extra duty for 45 days, reduction to E-1.  No indication of appeal found in service record.

950421:	Applicant assigned to Level III treatment starting this date.  [Extracted from 950502 counseling.]

950502:	Counseled for deficiencies in performance and conduct.  [Alcohol related incident.  Repeated violations of the UCMJ and Japanese Law concerning alcohol.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.  

950504:	NJP for violation of UCMJ, Article 92, UCMJ: On 950421, violated SqdnO 11111.2E by possessing hard liquor in the barracks.
	Award:  Forfeiture of $427 per month for 2 months, restriction and extra duty for 45 days.  Forfeiture of $227 pay per month for 2 months, restriction and extra duty suspended for 6 months.  Not appealed.

950516:	Counseled for deficiencies in performance and conduct.  [Alcohol related incident on 10 May 95 (i.e. Reporting for restriction while intoxicated).]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

950705:	Forfeiture of pay, restriction and extra duty awarded at NJP on 950504 vacated.

950710:	Counseled for deficiencies in performance and conduct.  [Unauthorized absence from restriction muster, on 950708, lack of attention to detail; poor work habits and overall attitude towards superiors.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

950810:	Applicant to pretrial confinement.

950908:	Applicant from pretrial confinement.

950914:	Psychiatric evaluation of Applicant:
Diagnostic Impression:  
AXIS I:  ETOH Dependence, early partial remission.
AXIS II:  Antisocial Personality Disorder features.
Other findings:
The Applicant, at the time of the criminal conduct, did have a severe mental disease or defect.
	The psychiatric diagnosis has been determined to be Alcohol Dependence.
	During the alleged criminal conduct, the Applicant was able to appreciate the nature and quality or wrongfulness of his conduct.
	The Applicant was judged to have sufficient mental capacity to understand the nature of the proceedings and to conduct or cooperate intelligently in the defense. 

951011:	Counseled for deficiencies in performance and conduct.  [Failure of Level III Alcohol Rehabilitation Treatment due to curfew violation and consuming alcohol during treatment on 19 Jun 95.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

951012:	Special Court Martial:
	Charge I:  Article 91:
Specification: Was, on or about 10 August 1995, disrespectful in language toward Corporal S. B_, U.S. Marine Corps, his superior noncommissioned officer, then known by Private J. G. C_ (Applicant) to be his superior noncommissioned officer, who was then in the execution of his office, by saying to him, “F_ you.  You ain’t s_.  You’re only a corporal.  Why don’t you mind your own business.  We ain’t listening to you,” or words to that effect.
Charge II:  Article 92.
Specification 1:  Having knowledge of a lawful order issued by Corporal L_ D. P_, U.S. Marine Corps, to stop running away, an order which it was his duty to obey, did, on board Marine Corps Air Station, Iwakuni, Japan, on or about 30 July 1995, fail to obey the same by continuing to run away. 
Specification 2: Having knowledge of a lawful order issued by the Commanding Officer, Headquarters and Headquarters Squadron, to wit: Squadron Order 11111.2E, an order which it was his duty to obey, did on board Marine Corps Air Station, Iwakuni, Japan, on or about 30 July 1995, fail to obey the same by wrongfully allowing a female Marine to sleep overnight in his assigned Bachelor Enlisted Quarters room.
Specification 3:  Having knowledge of a lawful order issued by Corporal S. B_, U.S. Marine Corps, to put on camouflage utilities and go to the duty desk, an order which it was his duty to obey, did, on board Marine Corps Air Station, Iwakuni, Japan, on or about 10 August 1995, fail to obey the same by not putting on camouflage utilities and not going to the duty desk. 
Charge III:  Article 128.
Specification:  Did, at barracks #313, Room #203, on board Marine Corps Air Station, Iwakuni, Japan, on or about 10 August 1995, assault Corporal S. B_, U.S. Marine Corps, who then was and was then known by the accused to be a noncommissioned officer of the United States Marine Corps, by striking him in the face with a closed fist.
Charge IV:  Article 134. 
Specification 1:  Was, on board Marine Corps Air Station, Iwakuni, Japan, on or about 10 August 1995, drunk and disorderly, which conduct was of a nature to bring discredit upon the armed forces and prejudice to good order and discipline in the armed forces.
Specification 2:  Having been restricted to the limits of place of duty, billet and worship and most direct route to and from, by a person authorized to do so, did, on board Marine Corps Air Station, Iwakuni, Japan, on or about 30 July 1995, break said restriction.
Specification 3:  Having been restricted to the limits of place of duty, billet and worship and most direct route to and from, by a person authorized to do so, did, on board Marine Corps Air Station, Iwakuni, Japan, on or about 10 August 1995, break said restriction.
Specification 4:  Did, at Barracks #313, Room #203, on board Marine Corps Air Station, Iwakuni, Japan, on or about 10 August 1995, wrongfully communicate to Corporal S_ B_, U.S. Marine Corps, a threat, to wit: “F_ that,” and, “we should f_ you up,” or words to that effect.
Findings:
Charge I and the specification thereunder: Guilty*.
Charge II: Guilty
Specifications 1 and 3: Guilty
Specification 2:  Not Guilty
Charge III and the specification thereunder:  Guilty.
Charge IV:  Guilty
Specifications 1, 2 and 3:  Guilty.
Specification 4:  Not Guilty.  
*Guilty, except for the words “you ain’t s_. You’re only a Corporal;” substituting therefor the words “you’re nobody,” and except for the word “we” in the last line of the specification; substituting therefor the word “I;” of the excepted words, Not Guilty; of the substituted words, Guilty; of the specification as excepted and substituted, Guilty.
	Sentence:  Confinement for 75 days, followed by restriction for 30 days, forfeiture of $526 per month for 4 months, Bad Conduct discharge.
	CA 960222:  The sentence approved and ordered executed, except for bad conduct discharge, but the execution of that part of the sentence adjudging confinement in excess of 60 days is suspended for a period of twelve months.
	
951012:	Applicant to confinement at The Detention Facility, Marine Corps Air Station, Iwakuni, Japan.

951031:	Applicant from confinement.

951117:	Applicant to appellate leave.

970214:	NMCCCA:  Affirmed findings and sentence.

970721:	Appellate review complete.

970725:	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 19970725 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).  

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, including the Applicant’s medical diagnosis, and issues submitted, 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.

For the Applicant’s edification, the NDRB has no jurisdiction over reenlistment, reentry, or reinstatement into the Navy, Marine Corps, or any other of the Armed Forces and an Applicant’s intention to reenlist does not provide a basis on which the Board can grant relief.  Further, the 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 91, willfully disobey a noncommissioned officer, Article 92, failure to obey an order/regulation and Article 128, assault.

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