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

FOR OFFICIAL USE ONLY

 ex-Pvt, USMC
Docket No. MD05-01454

Applicant’s Request

The application for discharge review was received on 20050901.  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 20060601.  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 and/or from an attached document/letter to the Board:

“Circled Areas need to be reviewed.  Incorrect information.

No Reduction in Rank.”

The Applicant circled the following blocks on his DD Form 214: 4a (Grade, Rate, or Rank), 4b (Paygrade), 8a (Last Duty Assignment and Major Command), 12b (Separation Date This Period), and 12h (Effective Date of Pay Grade).

Documentation

In addition to the service and medical records, the following additional documentation, submitted by the Applicant, was considered:

Applicant’s DD Form 214 (2)
Character Reference ltr from L_ O_, “OJ”, MSGT USMC ret, dtd June 20, 2005
Applicant’s DD Form 214 from previous enlistment (1981-1985) (2)

PART II - SUMMARY OF SERVICE

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

	Inactive: USMCR (DEP)	19810819 - 19810910	COG
	Active:   USMC	19810911 - 19850523	HON
		USMC	19850524 - 19901028	HON

Period of Service Under Review:

Date of Enlistment:  19901029		Date of Discharge:  19941014

Length of Service (years, months, days):

Active:    03  11  16
	Inactive:  None

Time Lost During This Period (days):

	Unauthorized absence:  None
	Confinement:		  None
	Appellate Leave	  721 days

Age at Entry:  29

Years Contracted:  4

Education Level:  12				AFQT:  49

Highest Rank:  SSgt				MOS:  2311

Final Enlisted Performance Evaluation Averages (number of marks):  Enlisted performance reports were available to the Board for review.

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as stated on the DD Form 214):  National Defense Service Medal, Sea Service Deployment Ribbon w/3 stars, Southwest Asia Service Medal w/1 star, Meritorious Mast (2awds), Good Conduct Medal w/2 stars, Navy Unit Commendation, Pistol Expert Badge Rifle expert Badge (8awds), Meritorious Unit Commendation

Character, Narrative Reason, and Authority of Discharge (at time of issuance):

BAD CONDUCT DISCHARGE/As a result of a courts-martial (SPCM) - Other, authority: MARCORSEPMAN Par. 1105.

Chronological Listing of Significant Service Events:

901019:	Reenlisted this date for a term of 4 years.

920910:	Special Court Martial
	Charge I:  violation of the UCMJ, Article 112a:
	Specification: Did, at an unknown location, between about 2 June 1992 and about 15 June 1992 wrongfully use marijuana.  Plea:  Guilty.  Finding: Guilty.
	Additional Charge I:  violation of UMCJ, Article 86:
	Specification:  Did, at Camp Lejeune, North Carolina, at or about 0730, 14 August 1992, without authority, fail to go to the time prescribed t his appointed place of duty, to wit: Substance Abuse Counseling Officer, S-3, Building #FC-5000.  Plea:  Guilty.  Finding: Guilty.
	Additional Charge II:  violation of UCMJ, Article 91:
	Specification: Did, at Camp Lejeune, North Carolina, on or about 14 August 1992, having received a lawful order from Master Sergeant W. A. P_, a staff noncommissioned officer, then known by the said Staff Sergeant H_(Applicant) to be a staff noncommissioned officer, to take his urinalysis on 14 August 1992, an order which it was his duty to obey, willfully disobey the same.  Plea:  Not guilty.  Finding:  Withdrawn.
	Sentence:  Bad Conduct discharge.
	CA 930302:  The sentence approved and ordered executed, except for bad conduct discharge.
	SA:  see SSPCMO.
	
920914:	Applicant waived NC&PB review.  [Extracted from Supplementary Special Court-Martial Order No. GB011-94 dated 940909.]

920918:	Applicant to appellate leave.

931112:	NMCCMR:  Affirmed findings and sentence.  [Extracted from Supplementary Special Court-Martial Order No. GB011-94 dated 940909.]  

940909:	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 19941014 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).  

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 the special court-martial sentence did not include a reduction in rate. UCMJ Article 58a states that a court-martial sentence of an enlisted member in pay grade above E-1, as approved by the convening authority, that includes a dishonorable or bad-conduct discharge, reduces that member to pay grade E-1, effective on the date of that approval.

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 COURTS-MARTIAL, of the Marine Corps Separation and Retirement Manual, (MCO P1900.16D), effective 27 Jun 89 until 17 Aug 95.

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, Article112a.

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