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

FOR OFFICIAL USE ONLY

 ex-PVT, USMC
Docket No. MD05-01312

Applicant’s Request

A properly convened special court-martial sentenced the Applicant to a Bad Conduct Discharge on 20020618.  The Naval Clemency and Parole Board remitted the Bad Conduct Discharge on 20040226, and the Applicant was discharged on 20041207 with a service characterization of Under Other Than Honorable Conditions by reason of a conviction of a special court-martial.

The application for discharge review was received on 20050728.  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.  In acceptance letter, the Applicant was notified that he would first receive a record 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 20060413.  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 Under Other Than Honorable Conditions by reason of court-marital.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

“I am kindly requesting a review from the NDBR of my discharge to ask for an upgrade in my discharge from an OTH.  I committed a mistake and I know it, I am well aware of my actions and take full responsibility for it.  I also believe that I paid the price for my mistake being discharged from the Marine Corp was the ultimate prize.  I am simply asking the Board for a second chance.  I am asking for a second chance to do what I Swore to do, back then I was immature and full of problems that got in my way of being a great Marine.  These 2 years have been the hardest in my life, it has been hard to sit at home and watch the WAR in Iraq and feel helpless wishing you could do something to help.  I have a full time job but I am out of place there my place is in the U.S. Military, I lost my title of Marine and it hurts, after everything I went through to deserve the title.  I know that if given a second chance in the military I would do everything to the fullest.  With an upgrade of discharge I would apply to an upgrade in R.E. code, upon receiving the upgrade I would join the U.S. Army but I order to do so I need an upgrade from you.  Please give me a 2nd chance.”

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)	20000711 – 20010924		COG
	Active:    None

Period of Service Under Review:

Date of Enlistment:  20010925		Date of Discharge:  20041207

Length of Service (years, months, days):

Active:    03  02  13  (Does not exclude lost time.)
	Inactive:  None

Time Lost During This Period (days):

	Unauthorized absence:  126 days
	Confinement:		  30 days

Age at Entry:  18 

Years Contracted:  4 

Education Level:  12				AFQT:  42

Highest Rank:  PFC				MOS:  9971

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):  Rifle Marksman Badge, National Defense Service Medal.

*Not Available

Character, Narrative Reason, and Authority of Discharge (at time of issuance):

UNDER OTHER THAN HONORABLE CONDITIONS/COURT-MARTIAL, authority:  MARCORSEPMAN Par. 1105.

Chronological Listing of Significant Service Events:

020116:	Applicant to unauthorized absence at 1600 on 020116.

020305:	Applicant declared a deserter.

020522:	Applicant from unauthorized absence at 1455 on 020522 (126 days/apprehended).

020525:	Pre-trial confinement from 020525-020617.

020618:	Special Court Martial. 
	Charge I:  violation of the UCMJ, Article 86.
	Specification:  Unauthorized absence from on or about 020116 - 020522, [126 days/A.].  Plea: Guilty.  Findings: Guilty.
	Sentence:  Confinement for 30 days, reduction to E-1, Bad Conduct discharge.
	CA 030108:  The sentence approved and ordered executed, except for bad conduct discharge.
	
020719:	Applicant to appellate leave.

030110:	Notification of assignment to involuntary appellate leave.

040729:	NMCCCA:  Affirmed findings and sentence.

041018:	Appellate review complete.

041109:	SSPCMO:  In accordance with President, Naval Clemency and Parole Board decision letter dated 26 February 2004, the bad conduct discharge is remitted and the Appellant shall be separated with an Other Than Honorable discharge.  Article 71c, UCMJ, having been complied with, the other than honorable discharge ordered executed.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

A properly convened special court-martial sentenced the Applicant to a bad conduct discharge on 20020618.  The Naval Clemency and Parole Board remitted the bad conduct discharge and the Applicant was discharged on 20041207 with a service characterization of under other than honorable conditions by reason of a conviction of a special court-martial (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.  The Applicant’s service was marred by a special court-martial conviction for violations of UCMJ Article 86, unauthorized absence.  The Applicant was absent for 126 days until apprehended.  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 informs the Board that an upgrade would facilitate an RE Code change and subsequent entry into the U.S. Army.  Since the NDRB has no jurisdiction over reenlistment, reentry, or reinstatement into the Navy, Marine Corps, or any other of the Armed Forces, NDRB is not authorized to change a reenlistment code.  Only the Board for Correction of Naval Records (BCNR) can make changes to reenlistment codes.  Regulations limit the Board’s review to a determination on the propriety and equity of the discharge.  Since, these issues do not serve to provide a foundation upon which the Board can grant relief.  Relief on this basis is not warranted.

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 post-service accomplishments or any other evidence related to the 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