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

FOR OFFICIAL USE ONLY

 ex-Pvt, USMC
Docket No. MD05-01180

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 and the Narrative Reason for Separation be changed to “Hardship Death in Family.”  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 by American Legion.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20060119.  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 and reason for 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 father died when I was young (6 years old), and I never have been very strong about that subject.  Especially when I was young, I was raised solely by my mother after his death and guess you could say I had emotional problems when I was young due to this.  To add to it my mother was in and out of the hospital from my age of 12 to 18 with heart troubles this added to my worries, of losing her, in the fall winter of 93 a close uncle of mine died and it brought alot of memories back, and all I could think of was my mom & being at home near her.  I served my country honorably when I voluntarily joined.  Please consider my circumstances.  Thank you J_ B_ (Applicant).

(So mote it be)”

Representative submitted no issues.

Applicant’s Remarks:  “I have done well with my life since the military.  I am married, have two beautiful girls, and am in business for myself.  I own Barnes Electrical Construction Company in Rocky Mount, N.C.  I am sorry for my actions in the past but, the way my life is now with my family I wouldn’t change any decision I have ever made (Because I learned from every one of them).

Thank You J_ L. B_ (Applicant)

(So mote it be)”

Documentation

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

State of North Carolina Electrical Contractors Certificate, dtd July 31, 2006
Letter from the Applicant to the Naval Council of Personnel Boards, dtd June 20, 2005

PART II - SUMMARY OF SERVICE

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

	Inactive:  USMCR (DEP)	19911223 – 19920127		COG
	Active:    None

Period of Service Under Review:

Date of Enlistment:  19920128		Date of Discharge:  19950802

Length of Service (years, months, days):

Active:    03  02  14  (Does exclude lost time.)
	Inactive:  None

Time Lost During This Period (days):

	Unauthorized absence:  65 days
	Confinement:		  65 days

Age at Entry:  19

Years Contracted:  6 

Education Level:  12				AFQT:  68

Highest Rank:  PFC				MOS:  1171

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  4.0 (10)			Conduct:  3.6 (10)

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as stated on the DD Form 214):  M16 Sharpshooter Badge, National Defense Service Medal, Letter of Appreciation.

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:

911218:	Applicant briefed on and certified understanding of Marine Corps policy concerning illegal use of drugs.

920128:	Pre-service waiver for drugs granted.  

930217:	NJP for violation of UCMJ, Article 86:  UA (AWOL) from 0600 on 930210 to 0700, 930211.
	Award:  Correctional Custody for 7 days.  Not appealed.

940315:	Applicant reduced to the pay grade of E-2 as a result of a Professional Competency Review Proceeding held on 940315.

940317:	Counseling:  Advised of deficiencies in performance and conduct (Pattern of misconduct and substandard performance, specifically poor judgement, lack of obedience to lawful orders, unsatisfactory military presence, bearing and self-discipline.  SNM is also not being recommended for promotion in the month of April because of his past performance and administrative reduction on 15 March.), necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

940318:	Acknowledged understanding of eligibility but not recommended for promotion to Cpl for the month of April 94 Promotion period because of currently awaiting court martial.  Applicant chose not to make a statement.

940325:	Applicant to unauthorized absence at 1300 on 940325.

940421:	Applicant from unauthorized absence at 0825 on 940421 (26 days/surrendered).  

940422:	Summary Court-Martial.
	Charge:  violation of the UCMJ, Article 86.
	Specification: Absence from unit.
	Plea: Guilty.  Findings:  Guilty.
	Sentence:  Forfeiture of $555 per month for 1 month, reduced to E-1, confinement for 27 days.
	CA action 940422:  Sentence approved and ordered executed.

940422:	Applicant to MCB Camp Lejeune Brig for confinement.

940514:	Applicant released from the brig.
 
940516:	Counseling:  Advised of deficiencies in performance and conduct (Frequent involvement with military authorities and a pattern of misconduct.  Specifically noted is your (Applicant’s) previous NJP and Summary Court Martial for violations of Article 86 of the UCMJ, your recent Administrative Reduction to PFC due to self-admitted drug usage and overall lack of military presence, bearing and self-discipline.), necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

940517:	Applicant to unauthorized absence at 0731 on 940517.

940617:	Applicant declared a deserter this date.

940624:	Applicant from unauthorized absence at 0700 on 940624 (38 days/surrendered).  

940624:	Applicant to pre-trial confinement, MCB Camp Lejeune Brig.

940712:	From pre-trial confinement (19 days) credited toward the period of confinement approved.

940713:	Special Court Martial.
	Charge I:  violation of the UCMJ, Article 86:
	Specification:  Unauthorized absence 940517 - 940624, [38 days/S.]
	Plea: Guilty.  Findings: Guilty.
	Sentence:  Confinement for 45 days, forfeiture of $500 per month for 2 months, Bad Conduct discharge.
	CA 941228:  The sentence approved and except for the bad conduct discharge, will be executed but the execution of that part of the sentence extending to confinement in excess of 30 day is suspended for a period of 12 months from the date the sentence was adjudged, at which time, unless the suspension is sooner vacated, the suspended part of the sentence will be remitted without further action.

940718:	Applicant released from MCB Camp Lejeune Brig.
	
950104:	Applicant to appellate leave.

950522:	NMCCCA:  Affirmed findings and sentence.

950725:	Appellate review complete.

950802:	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 19950802 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 Applicant contends that his problems in the Marine Corps can be attributed to his concerns for the health of his mother and the death of his uncle.  While he may feel that the stress caused by his family situation was the underlying cause of his misconduct, the record clearly reflects his willful misconduct and demonstrated he was unfit for further service.  The evidence of record did not show that the Applicant was either not responsible for his conduct or that he should not be held accountable for his actions.  Relief denied.

 The NDRB is authorized to consider post-service factors in the recharacterization of a discharge.  However, 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 the civilian life subsequent to leaving the service.  Normally, to permit relief, a procedural impropriety or inequity must have been found to have existed during the period of enlistment in question.  Outstanding post-service conduct, 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, is considered.  The Applicant provided a copy of his North Carolina electrician’s license as documentation of his post-service.  The Applicant's efforts need to be more encompassing than those provided.  For example, the Applicant could have produced evidence of continuing educational pursuits, a verifiable employment record, documentation of community service, and certification of non-involvement with civil authorities, in order for consideration for clemency based on post-service conduct.  At this time, the Applicant has not provided sufficient documentation of post service character and conduct to mitigate the misconduct that resulted in his characterization of discharge.  Therefore, no relief will be granted.  

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.

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