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

FOR OFFICIAL USE ONLY

 ex-PVT, USMC
Docket No. MD06-00898

Applicant’s Request

The application for discharge review was received on 20060616.  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 20070419.  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.

PART I - ISSUES AND DOCUMENTATION

Decisional Issues

Equity:  The Applicant is claiming Post- Service equity as the mitigating factor for an upgrade of his discharge characterization to General

Documentation

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

Applicant’s DD Form 214 (Service 2) (2)
Letter from Applicant
Reference Letter from MSgt S_, dtd May 4, 2006
Letter from B. R. G_, dtd March 31, 1994
Excerpts from Service Record (22 pgs) 

PART II - SUMMARY OF SERVICE

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

	Inactive:  USMCR (DEP)	19870710 - 19871115	COG
	Active:    None

Period of Service Under Review:

Date of Enlistment:  19871116		Date of Discharge:  19950728

Length of Service (years, months, days):

Active:    03  04  24  (Does exclude lost time.)
	Inactive:  None

Time Lost During This Period (days):

	Unauthorized absence:  1548 days
	Confinement:		  23 days

Age at Entry:  17 (Parental Consent)

Years Contracted:  4 

Education Level:  11				AFQT:  56

Highest Rank:  PFC				MOS:  0811

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  3.5 (7)		Conduct:  2.4 (8) 

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as stated on the DD Form 214):  M-16 Marksman Badge

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:

881222:	NJP for violation of UCMJ, Article 112a: At some unknown location and date, did wrongfully and unlawfully use some amount of THC, a controlled substance.
Award:  Forfeiture of $335.00 pay per month for 2 months, restriction for 60 days, reduction to E-1.  Not appealed.

881222:	Counseling:  Advised of deficiencies in performance and conduct (Misconduct), necessary corrective actions explained, sources of assistance provided, and advised being processed for administrative discharge action.

890109:	NJP for violation of UCMJ, Article 134: Broke restriction 0900, 881226.
	Violation of UCMJ, Article 134: Broke restriction 0700, 881227.
	Violation of UCMJ, Article 86: Did, fail to go at the time prescribed to Bn CP, 0900, 881226.
	Violation of UCMJ, Article 86: Did, fail to go at the time prescribed to Bn CP, 0700, 881227.
	Violation of UCMJ, Article 86: Did, fail to go at the time prescribed to Bn CP, 2000, 881227.
	Violation of UCMJ, Article 86: Did, fail to go at the time prescribed to Bn CP, 2145, 881227.
	Violation of UCMJ, Article 134: Broke restriction 2000, 881227.
	Violation of UCMJ, Article 134: Broke restriction 2145, 881227.
	Award:  Forfeiture of $349.00 pay per month for 1 month, restriction for 30 days (suspended for 6 months), extra duty for 30 days.  Not appealed.

890208:	Counseling:  Advised of deficiencies in performance and conduct (Misconduct.), necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

890403:	Summary Court-Martial.
	Charge:  violation of the UCMJ, Article 86.
	Specification: UA (AWOL) 890113 to 890205 [23 days]
	Finding:  to Charge and the specification thereunder, guilty.
	Sentence:  Forfeiture of $466.00 pay per month for 1 month, confinement for 30 days.
	CA action 890411:  Sentence approved and ordered executed.

890403:	To confinement.

890427:	From confinement.
	
891106:	Applicant to unauthorized absence at 0716 on 891106.

891107:	Applicant from unauthorized absence at 0715 on 891107.

891222:	Declared a deserter.

940429:	Special Court Martial
	Charge I:  violation of the UCMJ, Article 86.
	Specification:  Did, on or about 891222, without authority, absent himself from his unit, apprehended on or about 940224, [1525 days/A.]  Plea: Guilty.  Finding: Guilty.
	Sentence:  Confinement for 90 days, forfeiture of $500.00 pay per month for 6 months, Bad Conduct discharge.
	CA 940429:  Sentence approved and, except for the bad conduct discharge, ordered executed, but the execution of that portion of the sentence adjudging 90 days confinement is suspended for a period of one year from the date of this action, at which time unless sooner vacated, the suspended confinement will be remitted without further action.
	
950202:	Applicant to appellate leave.

950403:	NC&PB clemency not granted.

950504:	NMCCCA:  Affirmed findings and sentence.

950714:	Appellate review complete.

950728:	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 19950728 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). 

The Applicant is claiming Post- Service equity as the mitigating factor for an upgrade of his discharge characterization to General.  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.

The Applicant’s case was considered under the pertinent standards of equity to determine if any factors in this particular case merited clemency.  The NDRB found the evidence of record did not contain sufficient mitigating or extenuating factors to offset the seriousness of the offenses for which the discharge was awarded.  In addition, the reason for discharge, convicted by special court-martial, is most appropriate.  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.  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, Articles 86 (Unauthorized Absence more than 30 days) and  112a (Wrongful use, possession, etc. of controlled substances).

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