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

FOR OFFICIAL USE ONLY

ex-Pvt, USMC
Docket No. MD05-01234

Applicant’s Request

The application for discharge review was received on 20050712.  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 20060316.  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:

“I would like this up grade, due to the fact that until this incident my time was well served and honorable.  I was young and made some extremely poor choices.  If I were to be confronted with this situation knowing what I know now, I would defiantly choose more wisely.  And I do not want this other than honorable discharge to follow me thru life.”

Applicant’s Remarks:  (Taken from the DD Form 293.)

Thank you for your time.

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)	19910619 - 19920616	COG
	Active:    None

Period of Service Under Review:

Date of Enlistment:  19920617		Date of Discharge:  19970108

Length of Service (years, months, days):

Active:    04  06  22  (Does not exclude lost time.)
	Inactive:  None

Time Lost During This Period (days):

	Unauthorized absence:  248 days
	Confinement:		   60 days

Age at Entry:  18

Years Contracted:  4

Education Level:  12				AFQT:  54

Highest Rank:  LCpl				MOS:  0311

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  4.0 (9)				Conduct:  3.9 (9)

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as stated on the DD Form 214):  National Defense Service Medal, Sea Service Deployment Ribbon, Rifle Sharpshooter Badge, Pistol Sharpshooter 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:

930226:	Acknowledged understanding of eligibility but not recommended for promotion to LCpl for the month of March because SNM (Applicant) is immature and has a lack of leadership.  Applicant chose not to make a statement.

930316:	Counseling:  Advised of deficiencies in performance and conduct (Not being at appointed place of duty on 930228 as a member of the color detail.  SNM Applicant) without proper authorization from his chain of command took it upon himself to trade dutys.   PFC W_(Applicant) had been told by his NCOIC Sgt A_ that there would be no trading of dutys.  SNM’s inability to follows orders given to by superior, displays is total lack of respect for authority and completing assigned tasks.  Main concern is to get out of all tasks assigned.  No matter what the outcome may be.), necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

930406:	Acknowledged understanding of eligibility but not recommended for promotion to LCpl for the month of April because of SNM (Applicant) is on weight control, and left post while on lounge duty.  Applicant chose not to make a statement.

940805:	Acknowledged understanding of eligibility but not recommended for promotion to Cpl for the month of August because of lack of experience and financial problems.  Applicant chose not to make a statement.

950201:	Acknowledged understanding of eligibility but not recommended for promotion to Cpl for the month of Feb due to financial irresponsibility.  Applicant chose not to make a statement.

950201:	Applicant to unauthorized absence at 0700 on 950201.

950206:	Applicant from unauthorized absence at 0645 on 950206 (4 days/surrendered).

950206:	Counseling:  Advised of deficiencies in performance and conduct (LCpl W_(applicant) has continued to show no progress in financial responsibility.  Depts are far beyond their due date.  I have seen no progress since last report.), necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

950214:	NJP for violation of UCMJ, Article 86:  In that LCpl W_(Applicant), did on or about 0700, 950201, without authority absent himself from his unit, and did remain so absent until on or about 0645, 950206.
	Award:  Forfeiture of $478.00 per month for 2 months, restriction and extra duty for 45 days, reduction to E-2.  Not appealed.

950511:	Applicant to unauthorized absence at 0645 on 950511.

950611:	Applicant declared a deserter as 0645, 950511.

960110:	Applicant from unauthorized absence at 2259 on 960110 (244 days/surrendered).

960112:	The mark of desertion is hereby removed as erroneous.

960116:	Acknowledged understanding of eligibility but not recommended for promotion to LCpl for the month of Feb 1996 because of recent UA.

960215:	Acknowledged understanding of eligibility but not recommended for promotion to LCpl for the month of Mar 1996 because of recent UA.

960301:	Special Court Martial
	Charge:  violation of the UCMJ, Article 86:
	Specification:  Did on 11 May 95, w/o auth, abs himself fr his org until 10 Jan 96.  Plea:  Guilty.  Findings:  Guilty.
	Sentence:  Confinement for 75 days, forfeiture of $500.00 per month for 1 month, reduction to E-1, Bad Conduct discharge.
	CA 950625:  The sentence approved and ordered executed, except for bad conduct discharge.
	SA:  see SSPCMO.
	
960301:	Joined Base Brig, Marine Corps Base, Camp Pendleton, CA for confinement.  Applicant credited 2 days against sentence to confinement. 

960301:	Applicant requested voluntary appellate leave.

960312:	Applicant forwarded Request for Restoration/Clemency to the Naval Clemency and Parole Board.  

960312:	Applicant signed appellate rights statement.

96XXXX*:	Commanding Officer, 3rd Battalion 5th Marines, forwarded request for voluntary appellate leave and recommended approval to Commanding General. [*Not dated].

960501:	Commanding Officer, 5th Marine Regiment, forwarded request for voluntary appellate leave and recommended approval to Commanding General.

960501:	Applicant released from Base Brig.

960712:	Applicant to appellate leave.  

961011:	NMCCCA:  Affirmed findings and sentence.  

970102:	Appellate review complete.

970108:	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 19970108 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).  The Board presumed regularity in the conduct of governmental affairs (D).

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 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.

The Applicant contends that his problems in the Marine Corps can be attributed to the fact that he “was young and made some extremely poor choices".   While he may feel that youth and immaturity were the underlying causes 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 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 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.

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