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

FOR OFFICIAL USE ONLY

 ex-PVT, USMC
Docket No. MD05-01395

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 general (under honorable conditions).  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 20060522.  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 need to upgrade my discharge so that when I am released from prison, I can get a job.  I was in a club in Panama where I thought everything was at peace.  I tapped a Panamanian woman on the arm, not knowing she was married or in love with a soldier.  She got mad and cursed me out and went to get her boyfriend who was in the army.  We weren’t in uniform so I had no idea he was in the military.  He approached me in an aggressive manner.  After I finished my drink,  I walked over to where they were dancing and struck him on the head with a bottle.  As I began to run out of the club, the Panamanian woman pulled a knife and stabbed me in the stomach.  I wasn’t a regular in this club so I thought I could go there and have a good time.  I don’t think I should be punished both by the courts and also by the hands of this woman.  I was incarcerated in the Brig for assault in addition to having endure life threatening knife wounds.  I was awaiting medial discharge after this incidence.  I was diagnosed with Patella Femoral Syndrome (PFS) in my knees from running so much in Panama.  My knees still bother me.  With an upgrade, I can get benefits.”

Applicant’s Remarks:  (Taken from the DD Form 293):  “Please grant this wish for upgrade.  I have been through a lot and for the military not to grant this request would be heartbreaking.  Without my benefits, I don’t think I can survive as a marine should.  Sometimes I can barely walk.  Right now I am in a legal battle.  The upgrade will enable me to have a better life after prison.”

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)	19920515 – 19921231		COG
	Active:    None

Period of Service Under Review:

Date of Enlistment:  19930101		Date of Discharge:  19951012

Length of Service (years, months, days):

Active:    02  09  02  (does not exclude confinement)
	Inactive:  None

Time Lost During This Period (days):

	Unauthorized absence:  35 days
	Confinement:		  unknown

Age at Entry:  18 

Years Contracted:  4 

Education Level:  12				AFQT:  53

Highest Rank:  LCpl				MOS:  0341

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  4.4 (5) 			Conduct:  4.3 (5)

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as stated on the DD Form 214):  Rifle Marksmanship Badge, National Defense Service Medal, 9MM Marksmanship 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:

940419:	Applicant to unauthorized absence at 0630 on 940419.

940420:	Applicant from unauthorized absence at 1300 on 940420.  

940429:	Applicant to unauthorized absence at 0630 on 940429.

940603:	Applicant from unauthorized absence at 1100 on 940603.  

940603:	Applicant to confinement.

940725:	Special Court Martial
	Charge I:  violation of the UCMJ, Article 86, (3 specifications).
	Specification 1:  Did at Naval Air Station, Norfolk, Virginia, on or about 940418, without authority, fail to go at the time prescribed to his appointed place of duty.  Plea: Not Guilty.  Finding: Not Guilty.
	Specification 2:  Did at Naval Air Station, Norfolk, Virginia, on or about 940419, without authority, absent himself from his unit and did remain so absent until on or about 940420.  Plea: Not Guilty.  Finding: Not Guilty.
	Specification 3:  Did at Naval Air Station, Norfolk, Virginia, on or about 940429, without authority, absent himself from his unit and did remain so absent until he was apprehended on or about 940603.  Plea: Guilty, except the word and figure “29 April,” substituting therefore the word and figure “2 May.” To the excepted word and figure, Not Guilty.  To the substituting word and figure, Guilty.  To the specification as expected and substituted, Guilty.  Finding:  Guilty, excepting the date “29 April,” substituting therefore the date “2 May.” of the excepted date, Not Guilty.  Of the substituted date, Guilty. 
	Charge II:  violation of UCMJ, Article 128 (2 specifications).
	Specification 1: Did, at the NCO club, Fort Clayton, Republic of Panama, on or about 940225, commit an assault upon Sergeant E. A. J_, U.S. Army, by striking him in the face with a means likely to produce death or grievous bodily harm, to wit: a beer bottle.  Plea: Guilty, excepting the words “death or.” To the excepted words, Not Guilty.  To the Specification as excepted, Guilty.  Finding:  Guilty, excepting the words “death or.”
	Specification 2:  Did, at the NCO club, Fort Clayton, Republic of Panama, on or about 940225, unlawfully strike Sergeant E. A. J_, U.S. Army, in the back of the head with a closed fist.  Plea: Guilty.  Finding: Guilty. 
	Sentence:  Confinement for 4 months, forfeiture of $500 per month for 4 months, reduction to E-1, bad conduct discharge.
	CA 950305:  Only so much of the sentence as provides for a bad conduct discharge, four months confinement, forfeiture of $500 per month for four months, and reduction to pay grade E-1, is approved and, except for the bad conduct discharge, will be executed, but the execution of that part of the sentence extending to confinement in excess of 120 days is suspended for a period of 12 months from the date of trial, at which time, unless the suspension is sooner vacated, the suspended part of the sentence will be remitted without further action.

941004:	Applicant from confinement.  [date estimated]

941015:	Applicant to appellate leave.

950720:	NMCCCA:  Affirmed findings and sentence.  

950929:	Appellate review complete.

951012:	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 19951012 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).  

In response to the Applicant’s issues, 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.  Additionally, the Board has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities.  Relief denied.

The Veterans Administration determines eligibility for post-service benefits not the Naval Discharge Review Board.  There is no requirement or law that grants recharacterization solely on the issue of obtaining Veterans' benefits and this issue does not serve to provide a foundation upon which the Board can grant relief.  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.  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 or Article 128, assault.

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