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

FOR OFFICIAL USE ONLY

 ex-PVT, USMC
Docket No. MD05-01193

Applicant’s Request

The application for discharge review was received on 20050706.  The Applicant requests the Discharge Characterization of Service received at the time of discharge be changed to general (under honorable conditions).  The Applicant requests a personal appearance hearing discharge review before the Board in the Washington, D.C. Metropolitan area.  The Applicant designated Disabled American Veterans as the representative on the DD Form 293.  In the acknowledgement letter, the Applicant was informed that the Naval Discharge Review Board (NDRB) first conducts a documentary review prior to any personal appearance hearing.  

Decision

A documentary discharge review was conducted in Washington, D.C. on 20060131.  After a thorough review of the available 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 discharge was to harsh for the circumstances.  I want to be able to come back in and finish my time in the service.”

Additional issues submitted by Applicant’s counsel/representative (Disabled American Veterans):

“After a review of the Former Service Members (FSM) DD Form 293 Application for the Review of Discharge or Dismissal from the Armed Forces of the United States and all of the evidence assembled for review, we continue to note the contention of the appellant in his request for an upgrade of his current Bad Conduct Discharge (BCD) to that of General Under Honorable Conditions.

The FSM served from August 19, 1992 to July 28, 1995 at which time he was discharged as a result of a Court Martial (SPCM) Other.

The FSM contends the style of discharge was to harsh for the events / circumstances found guilty of by the Court Martial.

A review of the record reflects the applicant was found guilty of two specifications of Article 91; and two specifications under Article 134, all other charges were dismissed prior to the official proceedings due to a lack of evidentiary proof. The way the record reads it gives the appearance that the Non-Commissioned Officer (NCO) that brought forth the allegations and specifications may have been experiencing and personality conflict with the applicant and instead of more direct counseling to resolve the issues took another approach to bring forward any charge that could be thought of to mitigate a discharge for the applicant, thereby not having to deal with the events of the past any further.

Based on this service’s review of the record, we contend the discharge is not proper at this time, and it was to severe at the time of separation, based on military regulations, we believe an Other Than Honorable discharge to have been more appropriate at that time and currently.

This creates a need for a review of the application of the standard, for the Board to determine that the Applicant’s discharge is improper. The Board will determine which reason for discharge should have been assigned based upon the facts and circumstances of the case presented before the Board, including the service regulations governing the reasons for discharge at that time, to determine whether relief is warranted. See SECNAVIST 5420.174D, Sect. 407, part 3.

Also submitted and part of the evidentiary record at this time are multiple lay statements that attest to the good character of the applicant, some who have known him both before and after his military service.

As the representative, we ask that consideration be given to equitable relief, as this is a matter that involves a determination whether a discharge should be changed under the equity standards, to include any issue upon which the Applicant submits to the Board’s discretionary authority, under SECNAVIST 5420.174D.

We ask for the Board’s careful and sympathetic consideration of all the evidence of record used in rendering a fair and impartial decision. These issues do not supersede any issues previously submitted by the Applicant. 

Thank you for your cooperation 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
Character Reference ltr from Applicant’s sister, CPT W_ S. N_, dtd March 21, 2003
Character Reference ltr from J_ J_, dtd March 20, 2003
Character Reference ltr from J_ L. B_, dtd February 10, 2003 (2)
Employment Reference ltr from Capt H_, dtd August 6, 1996 (2)
Disabled American Veterans Cover ltr to BCNR dtd April 20, 2005 

PART II - SUMMARY OF SERVICE

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

	Inactive:  USMCR (DEP)	19920707 – 19920818		COG
	Active:    None

Period of Service Under Review:

Date of Enlistment:  19920819		Date of Discharge:  19950728

Length of Service (years, months, days):

Active:    02  09  07  (Excludes lost time)
	Inactive:  None

Time Lost During This Period (days):

	Unauthorized absence:  none
	Confinement:		  63 days*

Age at Entry:  20

Years Contracted:  4 

Education Level:  12				AFQT:  42

Highest Rank:  PVT				MOS:  4400

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  NA**			Conduct:  NA**

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

*The Applicant may have additional lost time due to confinement from the summary court-martial conviction of 199301011 when he was sentenced to 30 days confinement.  Confinement dates for this period are not available in the record.
**Not Available

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:

930111:	Counseled for deficiencies in performance and conduct.  [Applicant’s lack of reasonable efforts, failure to accept responsibility, lack of accountability, lack of attention to detail and overall poor performance.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

930111:	Summary Court-Martial.
	Charge:  violation of the UCMJ, Article 121,
	Specification: In the Pvt C_ E. N_, USMC, H Company, SOI, MCB, CamLej, NC, did at MCB, CamLej, NC, MCTBn, on or about 921219, steal U.S. currency of a value of about $375.00, the property of Pvt J. T. S_, USMC.  Findings: Guilty. 
	Sentence:  Confinement for 30 days, forfeiture of $542.00.
	CA action 921223:  Sentence as adjudged is approved and will be executed.

930513:	NJP for violation of UCMJ, Article 91:  At A Co, ITBn, SOI, MCB, CamLej, 1015, 930416, willfully disobeyed order from Sgt A_ to shave.
Violation of UCMJ, Article 86: UA(AWOL) from A Co, ITBn, SOI, MCB, CamLej, 0800, 930418, go from appointed place of duty, to wit: the chow hall.
Violation of UCMJ, Article 86: UA(AWOL) from A Co, ITBn, SOI, MCB, CamLej, from 2000, 930418 to 0430 930419.
Violation of UCMJ, Article 86: UA(AWOL) from 0630, 930419 to 0730, 930419, from A Co, ITBn, SOI, MCB, CamLej.
Violation of UCMJ, Article 86: UA(AWOL) from A Co, ITBn, SOI, MCB, CamLej, 1015, 930419, go from appointed place of duty, to wit: bldg TC-551.
Violation of UCMJ, Article 91:  At Aco, ITBn, SOI, MCB, CamLej, 1930, 930421, willfully disobeyed order from SSgt V_ to remain in the company area.
Violation of UCMJ, Article 86: UA(AWOL) from 1000, 930425 to 1130, 930425, from ACo, ITBn, SOI, MCB, CamLej.
	Award:  Forfeiture of $407 per month for 2 months, restriction and extra duty for 45 days, reduction to E-1.  Not appealed.

930610:	NJP for violation of UCMJ, Article 91:  At AdminCo, SOI, MCB, CamLej, 1500, 930521, willfully disobeyed order from 1stSgt R_ to shave upper lip.
	Violation of UCMJ, Article 134: At AdminCo, SOI, MCB, CamLej, 930524, make false official statement to 1stSgt R_: “I have a no shaving chit.”
	Award:  Forfeiture of $407 per month for 2 months, restriction and extra duty for 45 days.  Not appealed.

931002:	Applicant to confinement.

931028:	Special Court Martial 
	Charge I:  violation of the UCMJ, Article 86, (3 specifications).
	Specification 1:  Did, on or about 930616, without authority fail to go at 0530 to his appointed place of duty to wit: building G-640.  Plea: Not Guilty.  Dismissed prior to findings: 
	Specification 2:  Did, on or about 930616, without authority, go from his appointed place of duty to wit: building G-460.  Plea: Not Guilty.  Dismissed prior to findings.
Specification 3:  Did, on or about 930618, without authority, go from his appointed place of duty to wit: building G-460.  Plea: Not Guilty.  Dismissed prior to findings.
Specification 4:  Did, on or about 930626, without authority, go from his appointed place of duty to wit: building TC-729.  Plea: Not Guilty.  Dismissed prior to findings.
	Charge II:  violation of UMCJ, Article 91, (2 specifications).
Specification 1:  Having received a lawful order from Staff Sergeant P.J. C_, U.S. Marine Corps, then know by the said Private C_ E. N_, U.S. Marine Corps, to be a noncommissioned officer, to “come here”, an order which it was his duty to obey, did, at or near, Camp Lejeune, North Carolina, on or about 930727, willfully disobey the same.  Plea: Not Guilty.  Finding: Guilty.
Specification 2:  Did, on or about 930727, was disrespectful in language toward Staff Sergeant P.J. C_, U.S. Marine Corps, a noncommissioned officer, then known by Private C_ E. N_, U.S. Marine Corps, to be a noncommissioned officer, who was then in the execution of his office, by saying to him, “no wonder why everyone wants to beat your ass” or words to that effect.  Plea: Guilty.  Finding: Guilty.
Charge III:  violation of UMCJ, Article 108:  Did, on or about 930611, without proper authority, willfully damage by throwing, one fire extinguisher, military property of the United States, the amount of said damage being of some value.  Plea: Not Guilty.  Dismissed prior to findings.
Charge IV:  violation of UMCJ, Article 134: Having been restricted to the limits of Administration Company area and place of duty, by a person authorized to do so, did, at or near Camp Lejeune, North Carolina, on or about 930617, break said restriction.  Plea: Not Guilty.  Dismissed prior to findings.
	Additional Charge: violation of UCMJ, Article 134:  Having been restricted to the limits of Administration Company, School of Infantry, by a person authorized to do so, did, at or near Camp Lejeune, North Carolina, on or about 931004, break said restriction.  Plea: Guilty.  Finding: Guilty.
	Sentence:  Confinement for 75 days, forfeiture of $500 per month for 2 months, Bad Conduct discharge.
	CA 940304:  The sentence approved and ordered executed, except for bad conduct discharge.
	
931126:	Applicant waived clemency review.

931205:	Applicant from confinement.

931210:	Applicant to voluntary appellate leave.

940615:	Applicant to involuntary appellate leave.

941216:	NMCCCA:  Affirmed findings and sentence.

950622:	USCAAF:  Petition for review denied. 

950728:	SSPCMO:  Article 71c, UCMJ, having been complied with, Bad Conduct discharge ordered executed.

Service Record was missing elements of the Summary of Service.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19950728 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 available 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 presumed regularity in the conduct of governmental affairs (D).

In response to the Applicant’s issue as addressed by his representative, 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 character and employment references, 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.

Regarding the Applicant’s desire to reenlist, the NDRB has no jurisdiction over reenlistment, reentry, or reinstatement into the Navy, Marine Corps, or any other of the Armed Forces.  The NDRB is not authorized to change a reenlistment code or grant relief based on the intention of an Applicant to reenter the Armed Forces.  Reenlistment policy of the Marine Corps is promulgated by the Commandant, United States Marine Corps, Code MMEA, 3280 Russell Road, Quantico, VA 22134.  Neither a less than fully honorable discharge nor an unfavorable "RE" code is, in itself, a bar to reenlistment.  A request for a waiver is normally done only during the processing of a formal application for enlistment through a recruiter.  

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 91, insubordinate conduct, Article 107, false official statement or Article 121, larceny.

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.

D.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part II, Para 211, Regularity of Government Affairs

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