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

FOR OFFICIAL USE ONLY

ex-PVT, USMC
Docket No. MD05-01350

Applicant’s Request

The application for discharge review was received on 20050808.  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:

“Dear Gentlemen of the Discharge Review Board,

My name is S_ F_, formerly Private F_ of the United States Marine Corps.  I enlisted when I was seventeen years old in 1996.  I completed boot camp in October of 1996.  I came home very homesick and decided to stay longer that I should have.  When I turned myself in, I told my appointed attorney that I wanted out of the Marine Corps.  He said the only way I could get out was if I received a bad conduct discharge under special court martial.  I was young and naïve and thought that was the best thing for me to do, so I agreed.  Looking back, I regret the decision I made.  I am asking that you do not penalize me for the rest of my life for the mistake I made when I was eighteen years old.  I ask that you have mercy on me when reviewing my case to upgrade to an honorable discharge so that I may re-enlist.  Since being discharged, I have had no problems with the law.  I have been a faithful member for nine years of Cornerstone Freewill Baptist Church.  I attended one year of college at Southeastern Freewill Baptist Bible College in Wendell, North Carolina.  I came back to Tulsa and worked for the Boeing Company until I was laid off in 2002.  I am a letter carrier for the United States Post Office where I have been employed for two years.  I have been happily married for three years and my wife and I are now expecting our fourth child in September.  Please take into consideration that I am trying to have the best for my family and I believe we would all benefit if I were able to re-enlist in the military.

Respectfully,
S_ F_”

Documentation

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

Applicant’s DD Form 214
Letter from Applicant dtd June 28, 2005
Employment Reference ltr from R_ K_, Supervisor Customer Services, dtd June 3, 2005
Character Reference ltr from S_ S_, Associate Minister
Character Reference ltr from Z_ H_
Character Reference ltr from R_ W_, Principal, Cornerstone Christian Academy, dtd November 23, 2004
Character Reference ltr from W_ T_
Letter to Congressman F_ D. L_, from R. R. C_, dtd August 9, 2005
Letter from Congressman F_ D. L_, dtd July 27, 2005

PART II - SUMMARY OF SERVICE

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

	Inactive:  USMCR (DEP)	19960516 – 19960714		COG
	Active:    None

Period of Service Under Review:

Date of Enlistment:  19960715		Date of Discharge:  19980309

Length of Service (years, months, days):

Active:    01  07  25  (Does not exclude lost time.)
	Inactive:  None

Time Lost During This Period (days):

	Unauthorized absence:  164 days
	Confinement:		  33 days

Age at Entry:  17 (Parental Consent)

Years Contracted:  4 

Education Level:  12				AFQT:  61

Highest Rank:  PVT				MOS:  0300

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 Sharpshooter Badge.

*Not Available

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:

961015:	Applicant to unauthorized absence at 1801 on 961015.

961105:	Applicant from unauthorized absence at 1300 on 961105 (22 days/surrendered).

961209:	Applicant to unauthorized absence at 2301 on 961209.

970108:	Declared a deserter.

970430:	Applicant from unauthorized absence at 1101 on 970430 (142 days/surrendered).  

970604:	Special Court Martial
	Charge I:  violation of the UCMJ, Article 86, (2 specifications).
	Specification 1:  Did, on or about 961015, without authority, absent himself from his organization until on or about 961105 [22 days/S.].  Plea: Guilty.  Finding: Guilty.
	Specification 2:  Did, on or about 961209, without authority, absent himself from his organization until on or about 970430 [142 days/S.]. Plea: Guilty.  Finding: Guilty.
	Sentence:  Confinement for 40 days, forfeiture of $600 per month for 6 months, Bad Conduct discharge.
	CA 970723:  The sentence approved and ordered executed, except for bad conduct discharge.
	
970604:	To confinement.

970706:	From confinement, restored to full duty. [Extracted from DD Form 214]. 

970711:	Applicant to appellate leave.

971218:	NMCCCA:  Affirmed findings and sentence.

980304:	Appellate review complete.

980309:	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 19980309 with a bad conduct discharge which was the sentence adjudged by a properly convened special court-martial.  The convening and appellate authorities subsequently approved 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).

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 two specifications of UCMJ Article 86, unauthorized absence.  The Applicant was absent for a total of 164 days.  After a thorough review of the Applicant’s record, issues submitted, post service accomplishments, and employment and character 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.

The NDRB 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.  The Applicant submitted one employment reference and four character references for consideration.  The Applicant is advised that his efforts need to be more encompassing to include evidence of continuing educational pursuits, verifiable employment records, documented community service, and certification of non-involvement with civil authorities.  At this time, there is not sufficient documentation of post service character and conduct to mitigate the misconduct that resulted in his characterization of discharge.  And so, no relief is granted on this basis.

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, 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