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

FOR OFFICIAL USE ONLY

 ex-PVT, USMC
Docket No. MD05-01428

Applicant’s Request

The application for discharge review was received on 20050824.  The Applicant requests the Discharge Characterization of Service received at the time of discharge be changed to general (under honorable conditions) and the Narrative Reason for Separation be changed to “For the good of the service”.  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 and reason for 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 attached document/letter to the Board:

“Dear Military Authority: The following issues are the reasons I believe my reentry into the Military service of the United States of America should be granted.  If you disagree, please explain in detail why you disagree.  The presumption of regularity that might normally permit you to assume that the service acted correctly in characterizing my service as not worth reentry does not apply to my case because of the evidence that I am submitting.

ISSUES:
1.  My record of doing well in training was consistent.
A.  Platoon iron man in recruit training.
B.  Team leader.
C.  Represented infantry battalion for super squad competition (best squad of men chosen from a thousand men).
D.  Recommended by Platoon Commander for Sniper School.
2.  My records of UCMJ violations were only minor or isolated
A.  Five miles out of bounds.
B.  UA for eight hours
C.  UA for five days and missed movement within that timeframe.
3.  The punishment I received was too harsh for the offenses I committed.
A.  Thirty-five days in the brig.
B.  Thousand dollars in fines.
C.  Maximum reduction in rank (E-1).
D.  Bad- conduct discharge.
E.  Barred from re-enlistment.
4.  I have been a good citizen since discharge.
A.  No law violations
B.  Earned over twenty college credits.
C.  Obtained a Specialized Diploma in Corrections.
D.  Obtained a Certificate in Class A Driver Training.
E.  Scored very well on the ASVAB.
F.  Dedicated and volunteer at my local home church.
G.  Mentored youth.
5.  Recruiting has been low and the United States Army wants to give me an opportunity to serve with them.
A.  I have been persevering to re-enlist since discharge.
B.  A LCOL USA (RET) has recommended me.
C.  A CPT USA has recommended me.
D.  Recruiters have recommended me.
E.  Senator S_ has worked to help me as well as Senator S_.

Applicant’s Remarks:  (Taken from the attached document/letter to the Board.)

Dear Military Authority,

Thank you for your time and consideration in my case.  I have been persevering for the past three years to rejoin the ranks of the United States military.  I have been denied up until the present; however I refuse to give up.  I take responsibility for the violations I committed and I know there is no excuse for violating the UCMJ or any law of the Land.  I do believe in justice and I do believe in the purpose of rules.

The issue that I am humbly bringing to your attention is that I have been justified by the punishments that I paid.  The USMC deemed me not worthy of their ranks, which is understandable; however the USA has stated time and time again that they are willing to give me an opportunity to serve in their ranks.  The issue that is keeping me from re-enlisting is the narrative reason for separation.  There is no waiver authorized for the narrative reason I received.  The re-entry code is unfavorable, but the PA Army National Guard can waiver the RE-04 code, but they can not waiver the narrative reason for separation which is court martial.

My plead to you this day is that you have mercy on me and judge me favorably.  I have the God given talents and abilities to make an excellent soldier, please give me the opportunity to use them in our military.  I was rowdy when I was younger, however I have learned the lesson the hard way and I am a much wiser man this day.  I can bring much experience and a very good attitude to the soldiers of our country.  Thank you once again for your time and consideration.  God bless the USA.

In hope
J_ P_ W_(applicant)
Documentation

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

Applicant’s DD Form 214
Service Related Documents (5 pgs)
Diploma for Corrections from Lehigh Carbon Community College 
Letter from W. D_ P_, Executive Director, BCNR, dtd February 10, 2005 (2 pgs)
Memorandum from D_ J. H_, Head Performance Evaluation Review Branch Personnel Management Division to BCNR, dtd December 21, 2004
Letter of Recommendation from, C. A. H_ LTC, USA (Ret) dtd May 22, 2004
Memorandum for the Record from E_ N_, CPT, USA Commanding, dtd August 5, 2004
Certificate of Completion for Commercial Driver’s License Class A Truck Driver Training, dtd April 13, 2005  

PART II - SUMMARY OF SERVICE

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

	Inactive:  USMCR (DEP)	20000131 – 20000202		COG
	Active:    None

Period of Service Under Review:

Date of Enlistment:  20000203		Date of Discharge:  20030708

Length of Service (years, months, days):

Active:    03  05  05  (Does not exclude lost time.)
	Inactive:  None

Time Lost During This Period (days):

	Unauthorized absence:  5 days
	Confinement:		  34 days

Age at Entry:  23

Years Contracted:  4 

Education Level:  11 (GED)				AFQT:  69

Highest Rank:  LCpl				MOS:  0311

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  3.7 (1) 			Conduct:  3.7 (1) 

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

000530:	Counseling:  Advised of deficiencies in performance and conduct (Specifically Art: 92, disobeying a lawful order by leaving the area of Jacksonville, NC.), necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

000530:	NJP for violation of UCMJ, Article 91:  At Forming, MATCo, HqSptBn, SOI, MarCorScols, Camlej, on or about 2000, 000520, willfully disobeyed order from GySgt B_ by leaving the Jacksonville, NC area while on liberty.
Award:  Forfeiture of $217 per month for 1 month, restriction and extra duty for 14 days.  Not appealed.

010727:	NJP for violation of UCMJ, Article 86:  Was at 3d Bn, 4th Mar, on or about 0730 on 010723 to 2000, 010723 UA.
Award:  Forfeiture of $272 per month for 1 month, restriction and extra duty for 14 days.  Not appealed.

010815:	Applicant to unauthorized absence at 0630 on 010815.

010820:	Applicant from unauthorized absence at 1800 on 010820 (5 days/surrendered).

010921:	Pre-trial confinement with the Base Brig, Marine Corps Base, Camp Pendleton, California, from 010921 to 011010 (20 days).  

011011:	Special Court Martial 
	Charge I:  violation of the UCMJ, Article 86.
	Specification:  Unauthorized absence from his unit 3dBn 4thMar from on or about 010816 until on or about 010820, [4 days/A.]  Plea: Guilty.  Finding: Guilty.
	Charge II:  violation of UMCJ, Article 87.
	Specification:  Did, on or about 010816, miss the movement of 3dBn 4thMar. Plea: Guilty*.  Finding: Guilty*.
	Charge III:  violation of UCMJ, Article 112a.
	Specification: Did, between about 010808 through 010821, wrongfully use marijuana.   Plea: Not Guilty.  Finding: Withdrawn.
	*Guilty, except for the word “design”, substituting the word “neglect”; to the excepted word: Not Guilty; to the substituted word, Guilty; to the specification as excepted and substituted: Guilty.  
Sentence:  Confinement for 60 days, forfeiture of $695 per month for 2 months, reduction to E-1, Bad Conduct discharge.
	CA 020408:  In accordance with the terms of  the pre-trial agreement, The sentence is approved and, except for bad conduct discharge, ordered executed, but the execution of that portion of the sentence adjudging all confinement in excess of 45 days is suspended for a period of 12 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 terms of the pre-trial agreement, the deferment of all unexcused confinement is hereby rescinded effective this date.  

011027:	From confinement, restored to full duty. 

011108:	Acknowledged understanding of eligibility but not recommended for promotion to PFC for the 1 Dec Prom period because of Court Martial.  Applicant chose not to make a statement.

020618:	Applicant to appellate leave.

030311:	NMCCCA:  Affirmed findings and sentence.

030606:	Appellate review complete.

030627:	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 20030708 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).  

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.

The Applicant contends that his “record of doing well in training was consistent” and warrants an upgrade to his discharge. Significant negative aspects of the Applicant’s conduct and performance of duty outweigh the positive aspects of his military record.  The Applicant’s service was marred by 1 retention warning, 2 nonjudicial punishment proceedings for violations of Articles 86 and 91 of the UCMJ and conviction at a Special Court Martial for violations of Articles 86 and 87 of the UCMJ.  Additionally, the Applicant contends that his “UCMJ violations were only minor” and the punishment “was too harsh for the offenses” committed. Violations of UCMJ Articles 91 and 87 are considered serious offenses punishable by a bad conduct discharge. The Applicant’s conduct falls below that required for a general (under honorable) characterization of service. Clemency would be inappropriate.  Relief is therefore denied.

The Applicant requests a change to the narrative reason for discharge to facilitate reentry into military service. The NDRB has no jurisdiction over reenlistment, reentry, or reinstatement into the Navy, Marine Corps, or any other of the Armed Forces. There is no requirement or law that grants recharacterization solely on the issue of allowing military enlistment and this issue does not serve to provide a foundation upon which the Board can grant relief.  Additionally, the Board has no authority to upgrade a discharge for the sole purpose of facilitating an RE code waiver.  Regulations limit the Board’s review to a determination on the propriety and equity of the discharge. Relief is not warranted.

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 two letters of recommendation, a community college diploma and a certificate of training 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, relief is not warranted.  

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 91 – willful disobedience, and Article 87 – missing movement. 

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