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

FOR OFFICIAL USE ONLY

 ex-Pvt, USMC
Docket No. MD05-01533

Applicant’s Request

The application for discharge review was received on 20050908.  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 American Legion as the representative on the DD Form 293. 

Decision

A documentary discharge review was conducted in Washington, D.C. on 20060824.  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

No issues for consideration were submitted by the Applicant.

Issues submitted by Applicant’s counsel/representative (American Legion): 

“Equity Issue:  Pursuant to USC 874 (b) (UCMJ, Article 74) and in accordance with SECNAVINST 5420.174D, Part IV, Paragraph 403 m (7), we request, on behalf of this former member, the Board’s clemency relief with an up-grade of his characterization of service on the basis of his post-service conduct. 

In accordance with Title 32, CFR, section 724.116 and SECNAVINST 5420.174D, Part I, Paragraph 1.20, The American Legion submits to the Naval Discharge Review Board (NDRB or Board) the above issue and following statement in supplement to this Applicant’s petition. 

Essentially, as noted on DD Form 293, this Applicant is requesting that his discharge be upgraded because the discharge does not represent his true character.  He has submitted a personal statement (2 pages) giving his reasoning for an upgrade of his discharge.  In his letter, this Applicant states that he regrets being less than honorably discharged from the service and would like another opportunity to improve his character and contribute to his country.

The SRB shows that this Applicant earned a Rifle Marksman Badge, a Pistol Marksman Badge, Sea Service Deployment Ribbon, a National Defense Service Medal, and a Presidential Unit Citation.  The SR shows that this Applicant was awarded SCM on 06AUG2004 for VUCMJ Article 89, VUCMJ Article 90, VUCMJ Article 91, VUCMJ Article 128, and VUCMJ Article 134.

This Applicant was separated with a Bad Conduct Discharge due to conviction by Special Court Martial as authorized by MARCORSEPMAN 1105 SPCMSONO 05-0724 dtd 20050316.
 
The American Legion’s express purpose in providing this statement and any other submittals or opinions of record, is to aid the Applicant in resolving any impropriety or inequity in the character and basis for discharge.  Moreover, we rest assured that the Naval Discharge Review Board’s final decision will reflect sound equitable principles consistent with law, regulation, policy and discretion as promulgated by title 10 U.S.C., section 1553, and set forth in 32 C.F.R., part 724, SECNAVINST 5420.174C, enclosure (1).

This case is now respectfully submitted to the Board for deliberation and disposition.”

Documentation

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

Applicant’s DD Form 214
Statement from Applicant dtd July 27, 2005 (2 pgs)

PART II - SUMMARY OF SERVICE

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

	Inactive:  USMCR (DEP)	20000901 – 20010729		COG
	Active:    None

Period of Service Under Review:

Date of Enlistment:  20010730		Date of Discharge:  20050317

Length of Service (years, months, days):

Active:    03  05  03  (excludes lost time)
	Inactive:  None

Time Lost During This Period (days):

	Unauthorized absence:  none
	Confinement:		  75 

Age at Entry:  18

Years Contracted:  4 

Education Level:  12				AFQT:  47

Highest Rank:  LCpl				MOS:  1812

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  4.0*				Conduct:  3.6* 

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as stated on the DD Form 214):  Rifle Marksman Badge, Pistol Marksman Badge, Sea Service Deployment Ribbon, National Defense Service Medal, Presidential Unit Citation

* Extracted from SJA message dtd 040929

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:

011205:	Counseling:  Advised of deficiencies in performance and conduct (A poor attitude towards training, a lack of respect for authority and very little discipline, furthermore, ability to follow simple orders and complete basic tasks is questionable at best), necessary corrective actions explained, sources of assistance provided.

020115:	NJP for violation of UCMJ, Article 121:  Did on or about 1400, 30 December 2001 wrongfully commit larceny.
Award:  Forfeiture of $482.00 pay per month for 2 months, restriction and extra duty for 30 days.  Not appealed.

030709:	Acknowledged understanding of eligibility but not recommended for promotion to Cpl for the month of Aug 03 prom period because of judgment and initiative.  Applicant chose not to make a statement.

030731:	NJP for violation of UCMJ, Article 86: On board MCB, CLNC, on or about 11 July 2003, Applicant failed to be at his appointed place of duty to wit:  1430 group discussion.
Violation of UCMJ, Article 107: At 3d Tank Battalion, 2d Marine Division, on or about 1130 15 July 2003, Applicant made a false official statement to Sgt A_ by saying he did not know about the extraction from his pay for the worthless check.  
Violation of UCMJ, Article 134:  On board MCB, CLNC, sometime during March 2002, Applicant did make and utter a check to AAFES, for the amount of $100.00 and thereafter dishonorably failed to maintain sufficient funds in the Bank to cover the check on presentation.
	Award:  Forfeiture of $336.00 pay per month for 1 month (suspended for 6 months), restriction and extra duty for 14 days.  Not appealed.

030801:	Counseling:  Advised of deficiencies in performance and conduct (Applicant’s pattern of misconduct; Specifically offenses related to theft, unauthorized absence, making false official Statements, and failing to maintain funds to cover checks.  Applicant was found guilty of violating the following articles on the following dates.  (020115) Company NJP Article 121 and (030731) Company NJP Articles 86, 107, and 134), necessary corrective actions explained, sources of assistance provided and disciplinary and discharge warning issued.

030805:	Acknowledged understanding of eligibility but not recommended for promotion to Cpl for the month of Sep 03 prom period because of Co NJP.  Applicant chose not to make a statement.

030908:	Acknowledged understanding of eligibility but not recommended for promotion to Cpl for the month of Oct 03 prom period because of Co NJP.  Applicant chose not to make a statement.

030923:	NJP for violation of UCMJ, Article 92 (2 Specifications).  [Extracted from counseling entry dated 030923.]

030923:	Counseling:  Advised of deficiencies in performance and conduct (Applicant’s pattern of misconduct; Specifically offenses related to theft, unauthorized absence, making false official Statements, failure to maintain funds to cover checks and underage drinking.  Applicant was found guilty of violating the following articles on the following dates.  (020115) Company NJP Article 121, (030731) Company NJP Articles 86, 107, and 134 and (030923) Company NJP Article 92 x 2), necessary corrective actions explained, sources of assistance provided and disciplinary and discharge warning issued.

031006:	Acknowledged understanding of eligibility but not recommended for promotion to Cpl for the months of Nov 03-Jan 04 prom period because of Co NJP Sept 03.  Applicant chose not to make a statement.

031110:	Counseling:  Advised of deficiencies in performance and conduct (Poor use of judgment: Applicant gave vehicle keys to LCpl G_ knowing that there was a reasonable possibility that LCpl G_ had consumed alcoholic beverages a short time before Applicant gave him the vehicle keys), necessary corrective actions explained and sources of assistance provided.

031229:	NJP for violation of UCMJ, Article 134: At 2d Tank Battalion, at 0700 on or about 15 December 2003, LCpl J_, as a result of overindulgence intoxicating alcohol, incapacitated for the proper performance of his duties.
	Award:  Forfeiture of $645.00 pay per month for 1 month (suspended for 6 months), extra duty for 30 days (5 days suspended for 6 months), reduction to E-2.  Not appealed.

040107:	Acknowledged understanding of eligibility but not recommended for promotion to LCpl for the month of Feb 04-Mar 04 prom due to alcohol substance abuse (Bn NJP).  Applicant chose not to make a statement.

040209:	Counseling:  Advised of deficiencies in performance and conduct (Applicant’s failure to make it to appointed place of duty at the prescribed time.  On 24 January, 2004 Applicant was informed by Cpl S_ that applicant had to be at Bldg HP-405 at 0730 on 25 January 2004 to be posted as the ADNCO for HP-405.  Applicant failed to make it to that assigned duty at the prescribed time.  Applicant’s reason for being absent (“I forgot that I had duty”) is unacceptable.  This infraction along with Applicant’s four previous NJP’s, four previous page 11s and 2 previous 6105s does not reflect honorable service, and reflects a lack of responsibility on Applicant’s behalf), necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

040523:	Applicant to pre-trial confinement.

040525:	Forfeiture of pay and extra duty awarded at NJP on 29 December 2003 vacated due to continued misconduct.

040608:	Acknowledged understanding of eligibility but not recommended for promotion to LCpl for the month of July 04 because of pending Court Martial.  Applicant chose not to make a statement.

040806:	Special Court Martial.
	Charge I:  violation of the UCMJ, Article 89.
	Specification:  Did, on board Camp Lejeune, North Carolina, on or about 22 May 2004, behave himself toward Second Lieutenant O_ A. A_, U.S. Marine Corps, his superior commissioned officer, then known by the said Private First Class J_, Jr.,(Applicant) to be his superior commissioned officer, by wrongfully saying to him “You aren’t s_” and “F_” you” three times, or words to that effect.  Plea: Guilty.  Finding: Guilty. 
	Charge II:  violation of UMCJ, Article 90.
	Specification: Having received a lawful command from Second Lieutenant O_ A. A_, U.S. Marine Corps, his superior commissioned officer, then known by the said Private First Class J_, Jr.,(Applicant) to be his superior commissioned officer, to come with him to the officer of the day duty office, or words to that effect, did, on board Camp Lejeune, North Carolina, on or about 22 May 2004, willfully disobey the same.  Plea: Guilty.  Finding: Guilty.
	Charge III:  violation of UCMJ, Article 91 (2 specifications).
	Specification 1: Having received a lawful command from Staff Sergeant R_ R. H_, U.S. Marine Corps, a staff noncommissioned officer, to stay in the officer of the day duty office, an order which it was his duty to obey, did, on board Camp Lejeune, North Carolina, on or about 21 May 2004, willfully disobey the same by saying “if you want me, come get me,” or words to that effect, and running from the officer of the day duty office.  Plea: Guilty.  Finding: Guilty.
	Specification 2: On board Camp Lejeune, North Carolina, on or about 21 May 2004 was disrespectful in language toward Staff Sergeant R_ R. H_, U.S. Marine Corps, a staff noncommissioned officer, then known by the said Private First Class J_ (Applicant) to be a staff noncommissioned officer, who was then in the execution of his office, by saying to him “f_ y_”, or words to that effect.  Plea: Guilty.  Finding: Guilty.
Charge IV:  violation of UCMJ, Article 128 (3 specifications).
Specification 1: Did, on board Camp Lejeune, North Carolina, on or about 20 May 2004, assault Corporal J_ M. S_, U.S. Marine Corps, by charging at him.  Plea: Guilty.  Finding: Guilty. 
	Specification 2: Did, on board Camp Lejeune, North Carolina, on or about 21 May 2004, assault Sergeant C_ E. A_ S_, U.S. Marine Corps, by charging at him.  Plea: Not Guilty.  Finding: Withdrawn and dismissed
Specification 3: Did, on board Camp Lejeune, North Carolina, on or about 22 May 2004, assault Corporal D_ J. J_, U.S. Marine Corps, by charging at him and swinging his fist at his head.  Plea: Not Guilty.  Finding: Withdrawn and dismissed.
Charge V:  violation of UCMJ, Article 134, 
Specification: Was, on board Camp Lejeune, North Carolina, between on or about 20 May 2004 and on or about 22 May 2004, drunk and disorderly, which conduct was prejudicial to good order and discipline and of a nature to bring discredit upon the armed forces.  Plea: Guilty.  Finding: Guilty.
	Sentence:  Confinement for 150 days, forfeiture of $750.00 pay per month for 5 months, reduction to E-1, Bad Conduct discharge.
	CA 041025:  The sentence approved and, except for the bad conduct discharge, will be executed, but the execution of that part of the sentence extending to all confinement in excess of time already served (23 May 2005 – 5 August 2004, totaling seventy-five (75) days) is suspended for a period of twelve (12) months from the date of this action, at which time, unless sooner vacated, the suspended portion will be remitted without further action.
	
040806:	Applicant submitted waiver of clemency.
 
040820:	Applicant to appellate leave.

050114:	NMCCCA:  Affirmed findings and sentence.  

050316:	Appellate review complete.

050316:	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 20050317 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, 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 NDRB is authorized to consider post-service factors in the recharacterization of a discharge to the extent such matters provide a basis for a more thorough understanding of the Applicant’s performance and conduct during the period of service under review.  Examples of documentation that should be provided to the Board include proof of educational pursuits, verifiable employment records, documentation of community service and certification of non-involvement with civil authorities.  As of this time, the Applicant has not provided any post-service documentation for the Board to consider.  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 P1900.16F), 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 89, disrespect to a superior commissioned officer, Article  90, assaulting or willfully obeying a superior commissioned officer, Article 91, insubordinate conduct, Article 92, failure to obey an order/regulation, Article 107, false official statement Article 121, larceny, Article 128, assault or Article 134, uttering worthless checks. 

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