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

FOR OFFICIAL USE ONLY

 ex-PVT, USMC
Docket No. MD05-01346

Applicant’s Request

The application for discharge review was received on 20050809.  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 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 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:

“After serving my entire enlistment (5 12/ yrs) I believe the present state of my discharge is severe and unjust at this point in my life.  It has been and remains detrimental to me in all aspects of my life.  I would have applied sooner but I did receive my DD-214 until just recently (02-01-05).  I am truly hoping that an up-grade to honorable will assist me with future endeavors, employment, etc.”

Documentation

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

Applicant’s DD Form 214

PART II - SUMMARY OF SERVICE

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

	Inactive:  USMCR (DEP)	19920325 – 19920517		COG
	Active:    None

Period of Service Under Review:

Date of Enlistment:  19920518		Date of Discharge:  19971210

Length of Service (years, months, days):

Active:    05  06  23  (Does not exclude lost time.)
	Inactive:  None

Time Lost During This Period (days):

	Unauthorized absence:  12 days
	Confinement:		  67 days

Age at Entry:  23

Years Contracted:  5 (1 month extension)

Education Level:  12				AFQT:  78

Highest Rank:  LCpl				MOS:  6060

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  4.0 (11)			Conduct:  3.9 (11) 

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as stated on the DD Form 214):  National Defense Service Medal, Letter of Commendation, Letter of Appreciation 2d Awd.

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:

920323:	Applicant briefed on and certified understanding of Marine Corps policy concerning illegal use of drugs.

930813:	Counseled for deficiencies in performance and conduct.  [Failure to obey a lawful written order of a superior commissioned officer, specifically, failed to obey DetO 5000.1E issued by the Commanding Officer, MAG-49, Det C, NAS South Weymouth, MA, issued on 26 January 1993, by having a female visitor in your room at Douglass Hall on or about 2100, 27 July 1993.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

930813:	NJP for violation of UCMJ, Article 90:  Failed to obey lawful written order by CO, MAG-49 Det C by having female visitor in his room at Douglass Hall on or about 930727.
Award:  Restriction and extra duty for 15 days, reduction to E-2.  Reduction suspended for 3 months.  Not appealed.

950525:	Counseled for deficiencies in performance and conduct.  [Poor judgment and lack of professional discipline as evidenced by failure to be at appointed place of duty from 0645-1145 on 950525.  Additionally, conduct as observed by NCOIC has been characterized as substandard as evidenced by failure to maintain appropriate military appearance, lack of time management, lack of bearing when dealing with senior Marines, and a lack of attention to detail.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

950815:	NJP for violation of UCMJ, Article 86 (3 specs):  UA.
	Specification 1: At HMLA-369, 950627, 0545 UA from rifle range.
	Specification 2: At HMLA-369, 950725, 0645-1110 was UA from appointed place of duty.
Specification 3: At HMLA-369, MCAS, Yuma, 950711, 2400-0100 was UA from appointed place of duty.
	Award:  Forfeiture of $487 per month for 2 months, extra duty for 45 days, reduction to E-2.  Suspended for 6 months.  Not appealed.

950816:	NJP impose and suspended on 950815 for a period of 6 months is hereby vacated and the punishment is ordered executed.

960612:	Counseled for deficiencies in performance and conduct.  [Your lack of integrity, poor judgment, and misuse of the chain of command is unacceptable.  Your continuous manipulation of the system for personal gains is unbecoming of a Marine.  This behavior is intolerable and will cease immediately.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

960620:	Counseled for deficiencies in performance and conduct.  [Your immature conduct, poor judgment, and lack of financial responsibility brings discredit upon the Marine Corps, the unit, and yourself.  Your lack of integrity and lackadaisical attitude towards the support of your dependent coupled with an intent to defraud the US Government is unacceptable.  Your contempt for authority, and total disregard for rules and regulation is intolerable and will cease immediately.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

960816:	Applicant to unauthorized absence at 2000 on 960816.

960828:	Applicant from unauthorized absence at 2120 on 960828 (12 days/surrendered).

960829:	Joined Base Brig, Marine Corps Base, Camp Pendleton, California, for confinement.

961028:	Special Court Martial.
	Charge I:  violation of the UCMJ, Article 86, (5 specifications).
	Specification 1:  Did, on or about 0430, 8 July 1996, without authority, fail to go at the time prescribed to his appointed place of duty.  Plea: Not Guilty.  Finding: Withdrawn.
	Specification 2:  Did, on or about 0700, 10 July 1996, without authority, fail to go at the time prescribed to his appointed place of duty.  Plea: Not Guilty.  Finding: Withdrawn.
	Specification 3:  Did, on or about 0700, 6 August 1996, without authority, fail to go at the time prescribed to his appointed place of duty.  Plea: Not Guilty.  Finding: Withdrawn.
Specification 4:  Did, on or about 0700, 15 August 1996, without authority, fail to go at the time prescribed to his appointed place of duty. Plea:  Guilty.  Finding:  Guilty.
Specification 5: Did, on or about 16 August 1996, without authority, absent himself from his unit, and did remain so absent until on or about 28 August 1996.  Plea:  Guilty.  Finding:  Guilty.
Charge II:  violation of UMCJ, Article 91 (2 specifications).
	Specification 1: Was, on or about 16 July 1996, disrespectful in language toward Master Sergeant P. A. C_, U.S. Marine, a staff noncommissioned officer, then known by the said Lance Corporal B_ to be a staff noncommissioned officer, who was then in the execution of his office, by saying, “Top, I’m not going to swim qual” and Top, don’t raise your voice at me” or words to that effect.  Plea: Not Guilty.  Finding: Withdrawn.
	Specification 2: Was, on or about 16 July 1996, having received a lawful order from Master Sergeant P. A. C_, U.S. Marine, a staff noncommissioned officer, then known by the said Lance Corporal B_ to be a staff noncommissioned officer, to step into the hangar and discuss the problem, an order which it was his duty to obey, willfully disobey the same.  Plea: Not Guilty.  Finding: Withdrawn.
	Charge III:  violation of UMCJ, Article 107,
	Specification: Did, on or about 12 June 1996, with intent to deceive, make to Sergeant Major C.A. V_, U.S. Marine Corps, an official statement, to wit: “I support my wife in the amount of $300.00 per month and she is in agreement with this,” which statement was false in that he was not providing any support to his wife, and was then known by the said Lance Corporal B_ to be so false.  Plea: Not Guilty.  Finding: Withdrawn.       
Charge IV:  violation of UCMJ, Article 112a, 
	Specification: Did, on or about 21 July 1996, wrongfully use methamphetamine.  Plea:  Guilty.  Finding:  Guilty
	Charge V:  violation of UCMJ, Article 121: (3 specifications)
Specification 1:  Did, on or about 16 August 1996, steal a 1996 Dodge Neon, of a value in excess of $100.00, the property of Lance Corporal C_ M. M_, U.S. Marine Corps.  Plea: Not Guilty.  Finding: Withdrawn. 
	Specification 2:  Did, on or about August 1996, steal a check book containing 21 blank checks, of some value, the property of First Lieutenant J_ R. C_, U.S Marine Corps.  Plea: Not Guilty.  Finding: Withdrawn.
	Specification 3: Did, from on or about 1 September 1994 to on or about 16 August 1996, steal a green log book, of some value; one gold key engraved with “All American Lock”, of some value; one gold key engraved with “Falcon Locks” and “SR”, of some value; one gold key engraved with “U.S. Govt Do Not Duplicate”, “CA37”, and 24”, of some value; one brown stamp reading “certified true copy”, of some value; one red stamp reading “endorsement”, of some value; one yellow electro-voice ear phone serial #9309, of some value less than $100.00; one yellow electro-voice ear phone serial #9312, of a value of less than $100.00; five gold envelopes imprinted with “Official Business Penalty for Private Use $300 and U.S. Mail Postage and Fees Paid”, of some value; one blue Makita cordless drill serial #2283145 and engraved with “MCAS BEQ” of a value in excess of $100.00; two black Makita batteries; of some value; one blue Makita fast Charger with serial #0495; of some value; one silver combination lock, of some value; one brass lock with one key with tape reading “153530CU#1”, of some value; one gold Schlage Key engraved with “Property of U.S. Govt. Do Not Duplicate”, of some value; one black Mag-Lite serial #D4004575424 engraved with” Property of the BEQ Manager Officer”, of some value; one silver stainless steel vice grip pliers engraved with “MCAS BEQ”, of some value; one silver in color with black handle scissors, of some value; and one brown Dymo Office Mate 11 Label Maker with blue tape, of some value, all military property and of a total value in excess of $100.00 the property of the U.S. Government.  Plea: Guilty (with excepted words).  Findings: Guilty.
	Charge VI:  violation of UCMJ, Article 134, 
	Specification: Did, on or about 16 August 1996, break said restriction. Plea: Guilty.  Findings: Guilty.
	Sentence:  Confinement for 85 days, forfeiture of $500 per month for 3 months, reduction to E-1, Bad Conduct discharge.
	CA 970418:  The sentence approved and ordered executed, except for bad conduct discharge.
	
961106:	From confinement, restored to full duty. 

961120:	Applicant to appellate leave.

970918:	NMCCCA:  Affirmed findings and sentence.  

971203:	Appellate review complete.

971210:	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 19971210 with a bad conduct discharge which was the sentence adjudged by a properly convened special court-martial.  Subsequently, the convening and appellate review authorities approve the sentence (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 Applicant desires an upgrade to Honorable in order to enhance future opportunities.  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 two nonjudicial punishment proceedings and a special court-martial conviction for violations of UCMJ Articles 86, unauthorized absence; 90, willfully disobeying a superior commissioned officer; 112a, wrongful use of controlled substance; 121, larceny; and 134, breaking restriction.  After a thorough review of the Applicant’s record and issues submitted, the Board determined that clemency was not warranted.  The sentence awarded the Applicant at his court-martial was appropriate for the offenses he committed.  Relief denied.

The following is provided for the Applicant’s edification.  The Board 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.  Verifiable proof of any post-service accomplishments must be provided in order for the Applicant to claim post-service conduct and behavior as a reason to upgrade a less than honorable discharge.  Evidence of continuing educational pursuits, verifiable employment records, documented community service, certification of non-involvement with civil authorities, and credible evidence of a substance free lifestyle are examples of documentation that should have been provided to receive consideration for relief based on post-service conduct.  At this time, the Applicant did not provided any post-service documentation for consideration.

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 P1900.16E), 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, Articles 90, willfully disobeying a superior commissioned officer; 112a, wrongful use of controlled substance; and 121, larceny of value more than $100.00.

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