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

FOR OFFICIAL USE ONLY

 ex-PVT, USMC
Docket No. MD05-01416

Applicant’s Request

The application for discharge review was received on 20050823.  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 designated private representative as the 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:

“Inadequate defense counsel.
Punishment to sever.
No prior acts of misconduct.
Mitigating circumstances.”

Additional issues submitted by Applicant’s counsel/representative (Private Representative):

“Dear Madam or Sir:

SUBJECT:	REQUEST FOR RE-CONSIDERATION OF BAD CONDUCT DISCHARGE

My name is B_ R_, Shift Commander for the Cheyenne Mountain Re-Entry Center in Colorado Springs, Colorado.  I am a former United States Marine, United States Army Soldier and Vietnam Combat Veteran.  I am acting as W_ W.  B_(Applicant)’s   Representative in this matter.  I have known Mr. B_ (Applicant) for over ten years.  He was a frequent visitor to my home and is a former school classmate and friend of my son B_ R_.  I counseled Mr. B_  before he entered active duty with the United States Marine Corps in 1995.  Mr. B_  was a highly motivated patriotic young man whose intentions were honorable and just.  I recall one conversation with him where he expressed great love for his country and his family.  He told me that he wanted to make a difference in the world and that the Marines would give him the discipline and strength to accomplish any task before him as well as build a foundation for the years to come.  This is one of the reasons that I consented to represent Mr. B_ .

Mr. B_  has expressed his regret and sadness of the fateful decision that he made which led to his dismissal from the Marine Corps.  I have had many conversations with Mr. B_  regarding his decision to go AWOL and miss his assigned movement.  He told me of the conversations with his then girl friend and the revelation that she was pregnant with his child.  He told me that he was torn by emotions of love for his country and his feeling for a girl that had had a miscarriage.  He told me that he had begun drinking and through a series of telephone calls with his girlfriend he bought a ticket home and departed Camp Pendleton.  He told me that at that moment he knew he had destroyed his life.  Upon returning to his home of record he sought to console the girl that he felt he had abandon but was met with disdain and treachery.  Mr. B_  told me that the choice he made left him with feeling of hopelessness and dishonor.  Mr. B_  sought counseling from his father and others regarding his situation.  He told me that he decided to return to Camp Pendleton and take responsibility for his actions and expected to be punished accordingly.  Mr. B_  was assigned to a Platoon awaiting his punishment.  By all accounts Mr. B_  complied with all orders and instructions from his superiors and met with his trial counsel Captain G_.  Mr. B_  was advised of the charges against him and his rights under the Uniform Code of Military Justice.

Mr. B_  contends that his counsel was ineffective with his defense.  Mr. B_  was told by counsel that it would be better to forgo a trial because the case was open and shut and regardless if he chose trial by judge or jury he would be found guilty and no mitigating circumstances would make a difference in the sentence he would receive.  Mr. B_  told his counsel Captain G_ that he wanted the opportunity to stay in the Marine Corps, serve his sentence and return to his unit to complete his enlistment contract.  Mr. B_  told me that Captain G_ advised him to plead guilty and take a reduced sentence and request discharge from the Marine Corps.  Mr. B_  told me that he was scared and felt pressured to take the deal.  He told me that Captain G_ told him that if he failed to take the deal he would be subjected to additional punishment and still be discharged from the service.  Mr. B_  served 70 days of confinement with no conduct infractions plus he was reduced to Private E-1 and forfeited $500.00 a month for four months and received a bad conduct discharge.

In my 25 years of law Enforcement & Corrections and 12 years of military service I have been involved in criminal court proceeding and have consulted with prosecuting attorneys on a wide variety of cases and I have made my recommendations regarding mitigating circumstances involving the sentencing of offenders.  I realize that some crimes have mandatory sentences with little or no leeway in the sentence given but I also know that Commanders as well as Judges in the military or civilian the justice system can consider mitigating circumstances and look for redeeming value in the offender.  I do not believe Mr. B_  was given the consideration of appearing before the Court Martial authority to plead his case.  I personally believe that a mistake was made in the case of W_ B_ .  I have personal knowledge of similar cases involving AWOL and Missing a Movement that resulted in the service member being retained in the service and not discharged under adverse circumstances.  I also am privy to service members being discharged under honorable conditions for the very same offences.  I believe that Mr. B_ ’s youth, state of mind and the lack of adequate counsel contributed to his sentence and Bad Conduct discharge.

I believe that Mr. B_  has suffered enough for his youthful indiscretion.  Mr. B_  takes full responsibility for his offense and conduct in this matter.  He is remorseful and saddened by his conduct but never the less is proud to have served his country as well as earning the title of United States Marine.  Since Mr. B_  has left the Marine Corps he has matured and grown into a responsible person and has been gainfully employed even though his discharged has hampered him from entering public service and some private sector employment.  Mr. B_  has a can do attitude and does not use his misfortune as an excuse or crutch for any adversity that he may experience.  To this day W_ B_  deeply regrets leaving the Marine Corps and if given the opportunity he would re-enter active duty and serve his country.  I do not normally act as a represented in cases such as these but after having numerous contacts and conversations with Mr. B_  I consented to represent him for a number of reasons.  The deciding factor was Mr. B_ ’s sincerity and remorse for letting his family and country down.  He offered no excuses and showed no concern for himself.  Mr. B_  is a good man and displays the courage that some lack by not being truthful and not taking responsibility for their actions.  In the interest of justice please consider giving Mr. B_  a second chance and awarding him a discharge up grade.

Respectfully

B_ R_
Shift Commander
[address deleted]”

Documentation

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

Applicant’s DD Form 214
Special Court Martial Supplemental Order NO 97-1742, dtd November 10, 1997
Letter from Applicant, undated
Character Reference ltr from W_ L. R_, dtd August 10, 2005
Character Reference ltr from Specialist B_ A. B_, USA, dtd June 12, 2005
Character Reference ltr from R_ J. J_, dtd November 2, 2004
Character Reference ltr from A_ W_, dtd, November 17, 2004 (2 pgs)
Character Reference ltr from W_ R. B_, dtd November 15, 2004
Character Reference ltr from Corporal E_ D. S_, dtd January 26, 2005
Character Reference ltr from J_ R. R_, dtd November 3, 2004
Letter from Commanding Officer, Navy and Marine Corps Appellate Leave Activity, Washington, DC dtd November 10, 1997

PART II - SUMMARY OF SERVICE

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

	Inactive:  USMCR (DEP)	19950829 – 19950919		COG
	Active:    None

Period of Service Under Review:

Date of Enlistment:  19950920		Date of Discharge:  19971110

Length of Service (years, months, days):

Active:    01  09  20  (excludes lost time)
	Inactive:  None

Time Lost During This Period (days):

	Unauthorized absence:  31 days
	Confinement:		  90 days

Age at Entry:  19

Years Contracted:  4 

Education Level:  10 (GED)				AFQT:  31

Highest Rank:  PFC				MOS:  0331

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  4.1 (3) 			Conduct:  3.1 (4)

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

960503:	Applicant to unauthorized absence at 1401 on 960503.

960603:	Applicant declared a deserter.

960604:	Applicant from unauthorized absence at 1650 on 960604.

960722:	Special Court Martial
	Charge I:  violation of the UCMJ, Article 87.
	Specification:  Did, on 960506, through design miss the movement of BLT 3/5 31ST MEU, with which he was required in the course of duty to move.  Plea: Guilty.  Finding: Guilty.
	Additional Charge:  violation of UMCJ, Article 86.
	Specification:  Did, on 960503 without authority absent himself from his organization until 960604.  Plea: Guilty.  Finding: Guilty.
	Sentence:  Confinement for 120 days, forfeiture of $500 per month for 4 months, reduction to E-1, bad conduct discharge.
	CA 961202:  The sentence is approved and, except for bad conduct discharge, ordered executed, but execution of that portion of the sentence adjudging confinement in excess of 90 days is suspended for a period of twelve months from the date of this action, at which time, unless sooner vacated, the suspended portion of the sentence will be remitted without further action.  Pursuant to the term of the pretrial agreement, the deferment of all unexecuted confinement is hereby rescinded this date. 

960722:	Joined Base Brig, Marine Corps Base, Camp Pendleton, California, for confinement.  [Extracted from DD Form 214]

961022:	From confinement, restored to full duty.  [Extracted from DD Form 214]

961127:	Applicant to appellate leave.

970716:	NMCCCA:  Affirmed findings and sentence.

971023:	USCAAF:  Petition for review denied. 

971110:	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 19971110 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).  

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, issues submitted, post service accomplishments, mitigating circumstances 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.  Additionally, the Board found no evidence that supported the Applicant’s contention that he was denied effective assistance of counsel or that his sentence was improper.  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 87, missing movement by design or 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