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

FOR OFFICIAL USE ONLY

 ex-PVT, USMC
Docket No. MD05-01423

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 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 20060524.  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:

“The reason a change is requested is because one mistake in a person life for making a bad decision shouldn’t affect his whole life and keep it on his/her record.  Some deserve a second chance.  I am trying to rejoin the military to defend our country, and her people.  I know I made a mistakes but I am asking for you to overlook them and let me have another chance, so I can prove to the military and the civilian people that I have changed and that to me protecting our way of life is the job that I want and can do.  Not only for the reason of going back in the military.  But so I can make my family and myself a life for after my military serving is over.  But that’s all I have to say.  Thank you.”

Documentation

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

Applicant’s DD Form 214
Character Reference ltr from R_ M_ (not dated)
Character Reference ltr from L_ S_ (not dated)
Character Reference ltr from R_ H_ (not dated)

PART II - SUMMARY OF SERVICE

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

	Inactive:  USMCR (DEP)	19970221 – 19971104		COG
	Active:    None

Period of Service Under Review:

Date of Enlistment:  19971105		Date of Discharge:  20040617

Length of Service (years, months, days):

Active:    06  07  12  (Does not exclude lost time.)
	Inactive:  None

Time Lost During This Period (days):

	Unauthorized absence:  none
	Confinement:		39 days

Age at Entry:  18 

Years Contracted:  4 

Education Level:  12				AFQT:  54

Highest Rank:  LCpl				MOS:  2531

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, Navy Unit Commendation, Joint Meritorious Unit Award, Kosovo Campaign Medal, Sea Service Deployment Ribbon (3), Letter of Commendation, Certificate of Commendation.

*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:

990714:	Counseling:  Advised of deficiencies in performance and conduct (unsatisfactory performance of duties specifically, Applicant have demonstrated a lack of endurance physical stamina and intestinal fortitude by failing a physical fitness test), necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

991117:	Acknowledged understanding of eligibility but not recommended for promotion to Cpl for the month of Dec 1999 due to my inability to stay in Marine Corps height and weight standard, IAW MCO P1400.32B, as applicable, unless waived by an appropriate authority.  Applicant chose not to make a statement.

000424:	NJP for violation of UCMJ, Article 134:  Drunken Disorder, LCpl G_, was on 000410 at approximately 0100 passed out in a local city park due to excessive intoxication, LCpl G_’s BAC was .216.
	Award:  Forfeiture of $563.00 per month for 1 month (suspended for 6 months), reduction to E-2 (suspended for 6 months).  Not appealed.

undated:	Acknowledged understanding of eligibility but not recommended for promotion to LCpl for the month of Jan, Feb, Mar, Apr, and May 2000 due to my recent Non-Judicial punishment, IAW MCO P1400.32B, as applicable, unless waived by appropriate authority.  Applicant chose not to make a statement.

000502:	Counseling:  Advised of deficiencies in performance and conduct (Failure to keep track of your military ID card.  Within the last 2 months you have lost 2 military ID cards.  These cards are controlled items and your negligence in losing 2 constitutes your lack of judgement and common sense in maintaining them.  This does not demonstrate any sense of responsibility), necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

undated:	Acknowledged understanding of eligibility but not recommended for promotion to LCpl for the month of May, Jun, Jul, Aug, and Sep of 2000 due to my recent Non-Judicial punishment, IAW MCO P1400.32B, as applicable, unless waived by appropriate authority.  

010827:	NJP for violation of UCMJ, Article 86:  UA (AWOL) on or about 0545, 010815 without proper authority absent himself from his appointed place of duty.
Violation of UCMJ, Article 86: UA (AWOL) from 0800, 010815 to 1015, 010815 absent himself from his appointed place of duty.
Violation of UCMJ, Article 91: Was disrespectful in language and actions towards a Non-Commissioned Officer. 
Violation of UCMJ, Article 92: Failed to obey a direct order from a Non-Commissioned Officer.
Violation of UCMJ, Article 108: Wrongfully and willfully did damage to government.
Violation of UCMJ, Article 111: Operated a motor vehicle in the City of Jacksonville, NC while impaired.
Violation of UCMJ, Article 134: Was drunk, with a BAC level of .028%, SNM was unable to perform his duties.
Violation of UCMJ, Article 134: SNM had Jim Beam liquor in his barracks room, a violation of Battalion Orders.
	Award:  Correctional Custody Unit for 30 days.  Not appealed.

undated:	Acknowledged understanding of eligibility but not recommended for promotion to LCpl for the month of Sep because pending BN NJP.  Applicant chose not to make a statement.

undated:	Acknowledged understanding of eligibility but not recommended for promotion to LCpl for the month of Oct because of CCU/NJP.

010921:	Applicant to confinement. 

011029:	Applicant from confinement (39 days).
 
011030:	Special Court Martial 
	Charge I:  violation of the UCMJ, Article 134.
	Specification:  Did, on or about 010920, without authority, breach the restraint imposed by the Correctional Custody Unit without proper authority.  Plea: Guilty.  Finding: Guilty. 
	Charge II:  violation of UMCJ, Article 95.
	Specification:  Did, on or about 010831, without authority, flee apprehension by Sergeant P_ R. C_, U.S. Marine Corps, a person authorized to apprehend the accused.  Plea: Guilty.  Finding: Guilty.
	Sentence:  Confinement for 45 days, forfeiture of $650.00 per month for 1 month, reduction to E-1, Bad Conduct discharge.
	CA 020722: The sentence approved and ordered executed, except for bad conduct discharge.
	
011213:	Applicant to voluntary appellate leave.

020812:	Applicant to involuntary appellate leave.

031121:	NMCCCA:  Affirmed findings and sentence.  

040610:	Appellate review complete.

040616:	SSPCMO:  Article 71c, UCMJ, having been complied with, Bad Conduct discharge ordered executed.

	Service Record was missing elements of the Summary of Service (Performance and Conduct marks).

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20040617 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 available 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 Board presumed regularity in the conduct of governmental affairs (D).

In response to the Applicant’s issue, 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, issues submitted, and post service accomplishments, 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.

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.  An unfavorable “RE” code is, in itself, not a bar to reenlistment.  A request for a waiver can be submitted during the processing of a formal application for reenlistment through a recruiter.  Only the Board for Correction of Naval Records (BCNR) can make changes to reenlistment codes.

The NDRB is authorized to consider post-service factors in the recharacterization of a discharge.  However, there is no law or regulation, which provides that an unfavorable discharge, may be upgraded based solely on the passage of time, or good conduct in the civilian life subsequent to leaving the service.  Normally, to permit relief, a procedural impropriety or inequity must have been found to have existed during the period of enlistment in question.  Outstanding post-service conduct, to the extent that such matters provide a basis for a more thorough understanding of the Applicant’s performance and conduct during the period of service under review, is considered.  The Applicant provided three letters of character reference as documentation of post-service accomplishments.  The Applicant's efforts need to be more encompassing than those provided.  For example, the Applicant could have produced evidence of continuing educational pursuits, a verifiable employment record, documentation of community service, and certification of non-involvement with civil authorities.  At this time, the Applicant has not provided sufficient documentation of post service character and conduct to mitigate the misconduct that resulted in the characterization of discharge.  Therefore, no relief will be granted.  

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 any claims of post-service accomplishments or any additional evidence related to this 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 P1900.16F), 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 95 (resisting apprehension, flight, breach of arrest, escape), and Article 134 (correctional custody, escape from).

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.

D.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part II, Para 211, Regularity of Government Affairs.  

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