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

FOR OFFICIAL USE ONLY

ex-Pvt, USMC
Docket No. MD05-01179

Applicant’s Request

The application for discharge review was received on 20050629.  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 20060112.  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 an attached document/letter to the Board:

“To Whom It May Concern:
My name is J_ E. A_ (Applicant); I am from Miami, Florida, and currently working at Baptist Hospital in the Emergency Department as an EMT (Emergency Medical Technician).  I have over 11 years of military experience with the United States Marine Corps.  The reason why I am writing this letter is to request and plead that the discharge given to me be changed.  I was found guilty for violating the UCMJ (Article 86), reduced to E-1 and given a Bad Conduct Discharge.  My discharge was inequitable because it was based on one isolated incident in over 11 years of honorable service.  I am remorseful that my military career had to come to an end.  My past performance and record speak for themselves.  I had given 100% of my profession to the United States Marine Corps, from the first time I set foot on those famous yellow footprints, to the day I was charged of the violations of the UCMJ.

I had been separated from my wife for several months before filing for divorce.  I had also pursued proper legal steps to secure the divorce and keep in compliance with Marine Corps policy, in regards to supporting my family.  My wife in the other hand, had made it clear to ruin my career, and vowed to my commanding officer that she would do everything in her power to do so.  Embarrassed of my family problems and thinking that I could take care of them, led me to do inappropriate things for a Marine, especially that of an NCO.  The trust and confidence I once enjoyed with my commanding officer and other leaders in the company was no longer there.  The situation continued to escalate and before I knew it, found myself been charged for unauthorized absence.  I cannot give any explanations towards my actions nor would I make any excuses or blame the system.  Yet, I believe that I have paid for my mistakes.  I was involuntarily separated from an organization that I loved, respected, honorably served and was willing to give my life for.
At the moment I am pursuing a career with the fire departments and as we know this is a very competitive field.  I currently hold a certification as an EMT (Emergency Medical Technician) and a certification as a Firefighter II both from the state of Florida.  By having an Honorable discharge it will make me more competitive among my peers and enhance my opportunity in getting hired.  If I no longer can serve my country at least I would like to continue in serving my community. Please take in consideration the good things that I did in the Marine Corps, including my military records, and as a whole reconsider the discharge given to me.  I am enclosing several documents both USMC Fitness Reports, awards and a letter from the Miami-Dade Fire Rescue in which you will notice that throughout different phases of my life my performance does not go unnoticed.
Sincerely,
                                                                [Signed by Applicant] J_ E. A_ (Applicant)                                                                [SSN deleted]

Documentation

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

Applicant’s Fitness Reports (3 reports)
Commander Sixth Fleet Performance Citation to Applicant (January 24, 1991 to July 10 1991)
Certificate of Good Conduct, Third Award (May 4, 1994 to May 3, 1997)
Certificate of Navy Achievement Medal for Professional Achievement from November 1, 1992 to March 1, 1995
Citation for Navy Achievement Medal for Professional Achievement from November 1, 1992 to March 1, 1995
Certificate of Meritorious Mast dtd May 1, 1996
Certificate of Award, Drill Instructor Service Ribbon from October 1, 1995 to December 31, 1997
Navy and Marine Corps Achievement Medal Certificate  (May 27 1998 to June 11, 1998)
Character Reference ltr from S_ G. M_, Acting Chief, M_-D_ Fire Rescue dtd May 30, 2003
M_-D_ Community College Award (Completion of Emergency Medical Technician – Basic 1998 EMT-B Curriculum) dtd August 22, 2003
M_-D_ Community College Award of Completion (Firefighter I & II Program), dtd April 22, 2005
Applicant’s DD Form 214 (Member – 1)
Applicant’s ltr to the Board forwarding additional documents, dtd August 1, 2005
Newspaper Clipping concerning Applicant 
Character Reference ltr  from C_ F_ dtd July 27, 2005
Baptist Health South Florida employment letter dtd October 19, 2004
Baptist Hospital Pineapple Plus Award (Emergency Department) dtd March 11, 2004
Baptist Hospital Pineapple Plus Award (Emergency Department) dtd September 28, 2004
Baptist Hospital Pineapple Plus Award (Emergency Department) dtd October 14, 2004
Thank you letter to Applicant from Fire Rescue Department dtd April 24, 2003
Character Reference ltr from S_ G. M_, M_ - D_ Fire Rescue Department, dtd June 27, 2003
Letter of Recommendation from M_ D. S_, Hamilton Sundstrand, dtd November 27, 2002

PART II - SUMMARY OF SERVICE

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

	Inactive: USMCR (DEP)	19870918 – 19880503	COG
	Active:   USMC 		19880504 – 19920406	HON
	Active:    USMC		19920407 – 19950922	HON

Period of Service Under Review:

Date of Enlistment:  19950923		Date of Discharge:  20020923

Length of Service (years, months, days):

Active:    07  00  01  (Does not exclude lost/confinement time.)
	Inactive:  None

Time Lost During This Period (days):

	Unauthorized absence:  105 days
	Confinement:		    45 days

Age at Entry:  27

Years Contracted:  4

Education Level:  12				AFQT:  36

Highest Rank:  Sgt				MOS:  8531/0311

Final Enlisted Performance Evaluation Averages:  All enlisted performance reports were available to the Board for review.

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as stated on the DD Form 214):  Navy and Marine Corps Achievement Medals (2), Marine Corps Drill Instructor Ribbon, Kuwait Liberation Medal (Kuwait), Marine Corps Good Conduct Medal (3), Southwest Asia Service Medal, Sea Service Deployment Ribbon (2), National Defense Service Medal, Joint Meritorious Unit Award (2DBN 8THMAR 910405-910716), Certificate Of Commendation, Humanitarian Service Medal (2DBN 8THMAR 910405-910714), Pistol Expert Badge, 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:

950923:	Reenlisted this date for a term of 4 years.

980810: 	Applicant to unauthorized absence at 1000 on 980810.

980812:	Applicant from unauthorized absence at 1300 on 980812 (2 days/S).

980919:	NJP for violation of UCMJ, Article 86:  Unauthorized absence from 1000, 980810 to 1300, 980812.
	Violation of UCMJ, Article 92:  Derelict in performance of duties by willfully failing to return back to Co C, BLT 1/6, as told so by 1stSgt, on 980810 and 980811.
	Award:  Forfeiture of $112 pay per month for 1 month, restriction and extra duty for 14 days.  Not appealed.

981110:	Commandant of the Marine Corps, sends letter of “Revocation of Selection from the 1998 Staff Sergeant Selection List to Applicant”.  Applicant has been administratively deleted from the 1998 Staff Sergeant Selection List. 

990911:	Applicant to unauthorized absence at 1600, 990911.

990921:	Applicant from unauthorized absence at 0700, 990920 (8 days/S).

991004:	Applicant to unauthorized absence at 1300, 991004.

991103:	Applicant declared a deserter on 991103 having been an unauthorized absentee since 1300, 991004 from 1stBn, 6thMar, 2d MarDiv, II MEF.

991104:	Applicant surrendered to 1stBn, 6thMr, 2d MarDiv, II MEF Camp Lejeune, NC, on 991104 (0134).

991104:	Pre-Trial Confinement.

991210:	Released from pre-trial confinement.

991221:	Summary Court-Martial.
	Charge:  violation of the UCMJ, Article 86.
	Specification: Unauthorized absence from 4 Oct 99 to 4 Nov 99 from 1stBn, 6thMar, 2dMardiv (28 days/S).
	Finding:  to Charge and the specification thereunder, guilty.
	Sentence:  Forfeiture of $445.00 pay per month for 2 months, reduced to E-4.
	CA action 991221:  Sentence approved and ordered executed.

000124:	Applicant to unauthorized absence at 0701 on 000121.

000127:	Applicant from unauthorized absence at 1010 on 000127 (6 days/S).

000131:	Applicant to unauthorized absence at 1201, 000131.

000301:	Applicant declared a deserter on 0004301 having been an unauthorized absentee since 1201, 000131 from 1stBn, 6thMar, 2d MarDiv, II MEF.

000403:	Applicant apprehended by civil authorities on 000403 (1055) at Hyde Point Police Department, High Point, NC.  Returned to military control 000403.  Delivered to 1stBn, 6thMr, 2d MarDiv, II MEF Camp Lejeune, NC.

000404:	Pre-trial confinement.

000501:	Special Court Martial 
	Charge I:  violation of the UCMJ, Article 86, (2 specifications).
	Specification 1:  Unauthorized absence 000121 to 000127, [6 days/S].
	Specification 2:  Unauthorized absence 000131 to 000403, [61 days/A].
	Findings:  to Charge I guilty; to specification 1, withdrawn and dismissed; to specification II, guilty. 
Sentence:  Confinement for 45 days, reduction to E-1 effective 000515, Bad Conduct discharge.
	CA 000511:  The sentence approved and ordered executed.  The period of pretrial confinement from 4 April 2000 through 1 May 2000 (28 days of credit) is credited toward the period of confinement approved.  Camp Lejeune Base Brigg is designated as place of confinement.  
	SA:  see SSPCMO.
	
000501:	Joined Camp Lejeune Base Brigg for confinement.

000510:	From confinement, restored to full duty. 

000523:	Applicant to appellate leave.

001019:	Transferred to NAMALA.

020301:	NC&PB clemency not granted; restoration denied.

020613:	NMCCCA:  Affirmed findings and sentence.  

020910:	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 20020923 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 following is provided for the edification of the Applicant.  Normally, to permit relief, a procedural impropriety or inequity must have occurred during the discharge process for the period of enlistment in question.  The Board discovered no impropriety after a review of Applicant’s case.  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 Naval service.  The NDRB is authorized to consider post-service factors in the recharacterization of a discharge to the extent such matters provide a basis for a more thorough understanding of the Applicant’s performance and conduct during the period of service under review.  Examples of documentation that should be provided to the Board include proof of educational pursuits, verifiable employment records, documentation of community service, credible evidence of a substance free lifestyle and certification of non-involvement with civil authorities.  As of this time, the Applicant has not provided sufficient post-service documentation for the Board to consider.  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 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 P1900.16F), 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 86, unauthorized absence for more than 30 days.

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