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

FOR OFFICIAL USE ONLY

ex-PVT, USMC
Docket No. MD06-00922

Applicant’s Request

The application for discharge review was received on 20060628.  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 20070426.  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 – Youth, alcohol problem

Equity – Post service

Documentation

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

Applicant’s DD Form 214 (Service 2)

PART II - SUMMARY OF SERVICE

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

	Inactive:  USMCR (DEP)	19920316 - 19920413	COG
	Active:    None

Period of Service Under Review:

Date of Enlistment:  19920414		Date of Discharge:  19960723

Length of Service (years, months, days):

Active:    04  03  09  (Does not exclude lost time.)
	Inactive:  None

Time Lost During This Period (days):

	Unauthorized absence:  34 days
	Confinement:		  105 days

Age at Entry:  18 

Years Contracted:  4 

Education Level:  10				AFQT:  53

Highest Rank:  LCpl				MOS:  3381

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  3.6 (9)			Conduct:  2.6 (9)

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as stated on the DD Form 214):  Rifle Marksmanship Badge, Meritorious Mast, Sea Service Deployment Ribbon, National Defense Service Medal

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:

920316:	Enlistment waiver granted (MGD).

921019:	NJP for violation of UCMJ, Article 92: Wrongfully consuming alcohol beverages at 2200, 921011, being under the legal drinking age of 21.
	Violation of UCMJ, Article 134: Drunk and disorderly at 0024 on 921012.
	Award:  Forfeiture of $300.00 pay per month for 2 months, restriction and extra duty for 45 days, reduction to E-1.  Not appealed.

921019:	Counseling:  Advised of deficiencies in performance and conduct (Violated military regulations by your underage consumption of alcoholic beverage on 921011 in the Camp Johnson “E” Club by being drunk and disorderly in Blks M-507A on 921012.), necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

931023:	Counseling:  Advised of deficiencies in performance and conduct (Unauthorized absence from the Squadron BST Training on 931020, and 931021; disrespect attitude and language to seniors on 9310; and disobedience of lawful order from my NCOIC to report to work section on time.), necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

940322:	Applicant to UA at 0700, this date.

940422:	Declared a deserter as of 0700, this date.  

940425:	Applicant in the hands of civilian authorities.

940426:	Applicant from UA(AWOL) at 1625, this date..

940427:	To confinement.

940523:	Director, Consolidated Drug and Alcohol Center, Camp Lejeune, North Carolina.  Preliminary results of substance abuse assessment: Drug abuse (isolated incident).  Treatment/education, administrative actions:  Administrative separation in accordance with ALMAR 246/92 due to drug use will be recommended to the commander.  

940523:	Statement of Understanding of Treatment for Substance Abuse at a Veterans Administration Medical Center.  Applicant provided with location and contact information of local VA Medical Center that will provide assistance after his discharge.  

940606:	Special Court Martial.
	Charge I:  violation of the UCMJ, Article 86.
	Specification:  Unauthorized absence 940322 - 940425, [34 days/A.] Plea: Guilty.  Findings: Guilty.
	Sentence:  Confinement for 60 days, forfeiture of $600.00 per month for 2 months, reduction to E-2.
	CA 940808:  The sentence approved and ordered executed.

940608:	Counseling:  Advised of deficiencies in performance and conduct (Frequent involvement with military authorities and a pattern of misconduct, specifically noted in your previous special court martial for violation of Article 86 of the UCMJ, your violation of Article 92 on 940311 at 2345, for wrongfully consuming alcohol while under the legal age of 21, along with your violation of Article 86, and 134 on page 11 of your SRB.), necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

940608:	Counseling:  Advised of deficiencies in performance and conduct (Blatant disregard to Marine Corps regulations.  Violation of Article 92 on 940122, wearing a gold stud earring.), necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

940613:	From confinement.

941030:	Pre-trial confinement from 941030 to 941228 [60 days].
	
941229:	Special Court Martial.
	Charge I:  violation of the UCMJ, Article 89.
	Specification:  On or about 941029, behave himself with disrespect toward CWO3 R. H. T_, by interrupting while he was talking, and by contemptuously approaching and speaking to him in an insolent tone of voice.  Plea: Guilty.  Finding: Guilty.  
	Charge II:  violation of the UMCJ, Article 90.
	Specification:  Disobey a lawful command from CWO3 R. H. T_, to stand at the position of attention on or about 941029.  Plea: Not Guilty.  Finding: Withdrawn.  
	Charge III:  violation of the UCMJ, Article 91 (4 specifications).
	Specification 1: Willfully disobey a lawful order to turn down his stereo on or about 941023.  Plea: Guilty.  Finding: Guilty.  
	Specification 2: Willfully disobey a lawful order to turn down his stereo on or about 941029.  Plea: Not Guilty.  Finding: Withdrawn.  
	Specification 3: Was on or about 941029, disrespectful in language and deportment toward Sergeant P_ H. A_, by saying to him, “I don’t f_ have one Sergeant,” or words to that effect while pointing and approaching the said Sergeant.  Plea: Guilty.  Finding: Guilty. 
	Specification 4: Was on or about 941029, disrespectful in language toward CPL S. M. W_, by saying to him, “F_ off,” or words to that effect.  Plea: Not Guilty.  Finding:  Withdrawn.
	Charge IV:  violation of the UCMJ, Article 117.
	Specification: On or about 941023, wrongfully use provoking words, to wit: “F_ off” or words to that effect towards CPL S. M. W_.  Plea: Not Guilty.  Finding: Withdrawn.  
	Charge V:  violation of the UCMJ, Article 134: (2 specifications)
Specification 1: Drunk and disorderly on or about 941023.  Plea:  Guilty, except for the words “drunk and,” and the words “which conduct was a nature to bring discredit upon the Armed Forces.” To the excepted words: Not Guilty.  To the specification as excepted: Guilty.  Finding:  Guilty, except for the words “drunk and,” and the words “which conduct was a nature to bring discredit upon the Armed Forces.” Of the excepted words: Not Guilty.  Of the specification as excepted: Guilty.
Specification 2: Drunk and disorderly on or about 941029.  Plea:  Guilty, except for the words “drunk and,” and the words “which conduct was of a nature to bring discredit upon the Armed Forces.” To the excepted words: Not Guilty.  To the specification as excepted: Guilty.  Finding:  Guilty, except for the words “drunk and,” and the words “which conduct was a nature to bring discredit upon the Armed Forces.” Of the excepted language: Not Guilty.  Of the specification as excepted: Guilty.
	Sentence:  Confinement for 4 months, forfeiture of $550.00 pay per month for 4 months, reduction to E-1, Bad Conduct discharge.
	CA 950525:  The sentence approved and, except for the bad conduct discharge, will be executed, but the execution of that part of the sentence extending to confinement in excess of 75 days is suspended for a period of 12 months from the date of this action, at which time, unless the suspension is sooner vacated, the suspended part of the sentence will be remitted without further action.  The period of pretrial confinement from 30 October 1994 through 28 December 1994 (60 days) us credited toward the period of confinement approved.  
	
941229:	Waiver of clemency review.

950113:	Applicant to appellate leave.

960430:	NMCCCA:  Affirmed findings and sentence.

960723:	Appellate review complete.

960723:	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 19960723 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 Board presumed regularity in the conduct of governmental affairs (D).

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.

Equity – Youth, alcohol problem:  The Applicant contends that he was “young and had a drinking problem” which caused him to commit the misconduct.

The Applicant contends that his problems in the Marine Corps can be attributed to his "youth and alcohol."  While he may feel that his age and abuse of alcohol was the underlying cause of his misconduct, the record clearly reflects his willful misconduct and demonstrated he was unfit for further service.  The evidence of record did not show that the Applicant was either not responsible for his conduct or that he should not be held accountable for his actions.  Relief denied.

Equity – Post service:  The Applicant contends that since his discharge he has received treatment for his alcohol problem.

Normally, to permit relief, a procedural impropriety or inequity must have occurred during the discharge process for the period of enlistment in question.  The Board discovered no impropriety after a review of Applicant’s case.  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 civilian life subsequent to leaving Naval service.  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, credible evidence of alcohol rehabilitation and certification of non-involvement with civil authorities.  As of this time, the Applicant has not provided any post-service documentation to consider mitigating the misconduct that resulted in the characterization of discharge.  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 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 89 (disrespect toward superior commissioned officer), 90 (willfully disobey lawful order of superior commissioned officer), 91 (contempt, disrespect toward superior noncommissioned officer).

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.

D.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part II, Para 211, Regularity of Government Affairs.

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