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

FOR OFFICIAL USE ONLY

ex-Pvt, USMC
Docket No. MD06-00858

Applicant’s Request

The application for discharge review was received on 20060506.  The Applicant requests the Discharge Characterization of Service received at the time of discharge be changed to entry level separation or uncharacterized.  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 20070329.  After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, the Board determined that clemency was not warranted and that the characterization of discharge was appropriate.  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.

The NDRB did note administrative error(s) on the original DD Form 214.  Block 28, Narrative Reason for Separation, should read:  “COURT-MARTIAL.”  The Commandant, Headquarters USMC, Quantico, VA, will be notified, recommending the DD Form 214 be corrected or reissued, as appropriate.

PART I - ISSUES AND DOCUMENTATION

Decisional Issues

Equity – Quality of service

Equity – Family situation

Documentation

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

Applicant’s DD Form 214
Applicant’s statement (not dated)

PART II - SUMMARY OF SERVICE

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

	Inactive:  USMCR (DEP)	19961024 - 19961201	COG
	Active:    None

Period of Service Under Review:

Date of Enlistment:  19961202		Date of Discharge:  19991129

Length of Service (years, months, days):

Active:    02  11  28  (Does not exclude lost time.)
	Inactive:  None

Time Lost During This Period (days):

	Unauthorized absence:  136 days
	Confinement:	48 days	  

Age at Entry:  19

Years Contracted:  4

Education Level:  12				AFQT:  31

Highest Rank:  PFC				MOS:  0131

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  2.3 (5)				Conduct:  3.2 (4)

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:

970910:	Applicant to UA at 0730, 970909.

970930:	Applicant from UA at 0731, 970930 (surrendered).

971006:	Applicant to UA at 0731, 971003.

971106:	Applicant declared a deserter as of 0731, 971003.

980128:	Applicant to pretrial confinement.

980129:	The mark of desertion under 971003 is removed.  Referred to trial for the offense of UA only.

980209:	Charges preferred for violation of the Uniform Code of Military Justice (UCMJ) Article 86 (3 specifications):  Specification 1:  On or about 0730, 970807, absent himself and did remain so absent until on or about 2130, 970807.
	Specification 2:  On or about 970909, absent himself from and did remain so absent until on or about 970930.
	Specification 3: Did, on or about 971003, absent himself from and did remain so absent until on or about 980128.

980211:	Applicant notified of charges.

980211:	Charges referred to special court-martial.

980222:	Applicant from pretrial confinement.

980223:	Special Court Martial
	Charge I: violation of the UCMJ, Article 86 (3 specifications).
	Specification 1:  On or about 0730, 970807, absent himself and did remain so absent until on or about 2130, 970807.  Plea:  Guilty.  Finding:  Guilty.
	Specification 2:  On or about 970909, absent himself from and did remain so absent until on or about 970930.  Plea:  Guilty.  Finding:  Guilty.
	Specification 3: Did, on or about 971003, absent himself from and did remain so absent until on or about 980128.  Plea:  Guilty.  Finding:  Guilty.
	Sentence:  Confinement for 90 days, forfeiture of $617.00 per month for 3 months, reduction to E-1, Bad Conduct discharge.
	CA 981020:  The sentence approved and ordered executed, except for bad conduct discharge, but the execution of that part of the sentence extending to confinement in excess of 60 days is suspended for a period of 6 months.
	SA:  see SSPCMO.

980223:	Applicant to confinement.

980225:	Applicant signed appellate rights statement.

980317:	Applicant from confinement. 

980318:	Applicant to appellate leave.

990805:	NMCCCA:  Affirmed findings and sentence.

991117:	Appellate review complete.

991129:	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 19991129 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).  

Equity – Quality of service:  The Applicant contends that his discharge should be upgraded because he performed his job extremely well.

Equity – Family situation:  The Applicant states that he did not want to deploy with his unit because he did not want to leave his son behind.

In response to the Applicant’s issues, 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 specifically requested that the Board change his discharge to entry level separation or uncharacterized.  For the Applicant’s edification, by regulation, only members notified of intended recommendation for discharge within the first 180 days of enlistment are eligible for an uncharacterized or entry-level separation characterization of service.    

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 P1900.16E), 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 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 Instruction 1332.28, you may submit a complaint in accordance with Enclosure (5) of that Instruction.  You should read Enclosure (5) of the Instruction 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 Instruction 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