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

FOR OFFICIAL USE ONLY

 ex-Pvt, USMC
Docket No. MD06-00945

Applicant’s Request

The application for discharge review was received on 20060706.  The Applicant requests the Discharge Characterization of Service received at the time of discharge be changed to honorable.  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 20070510.  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.

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PART I - ISSUES AND DOCUMENTATION

Decisional Issues
 
Equity – Quality of service

Equity – Isolated incident

Equity – Ability to serve impaired by racial discrimination

Equity – Minor offenses, substance abuse did not involve distribution

Documentation

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

Applicant’s DD Form 214 (Member 1)
Applicant’s DD Form 214 (Member 4)
Applicant’s DD Form 214 (State Director of Veterans Affairs)
Letter from Applicant

PART II - SUMMARY OF SERVICE

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

	Inactive:  USMCR (DEP)	19990520 - 19990525	COG
	Active:    None

Period of Service Under Review:

Date of Enlistment:  19990526		Date of Discharge:  20050506

Length of Service (years, months, days):

Active:    05  11  10 (Does not exclude lost time.)
	Inactive:  None

Time Lost During This Period (days):

	Unauthorized absence:  1 day
	Confinement:		  121 days

Age at Entry:  21

Years Contracted:  4 

Education Level:  12				AFQT:  53

Highest Rank:  LCpl				MOS:  0481

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  4.3 (4)			Conduct:  4.4 (4)

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as stated on the DD Form 214):  Rifle Expert Badge, National Defense Service Medal, Marine Corps Good Conduct Medal, Global War on Terrorism Expeditionary Medal, Sea Service Deployment Ribbon (2), Presidential Unit Citation-NAVY, Meritorious Mast

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:

990526:	Enlistment waiver, “HYC” approved.

000926:	Applicant to pre-trial confinement.

001126:	Applicant from pre-trial confinement.

001127:	Special Court Martial
	Charge I:  violation of the UCMJ, Article 108.
	Specification: On or about 000923, without proper authority, willfully damage a glass door of a value of more than $100.00, military property of the United States.  Finding: Guilty.
	Charge II:  violation of the UMCJ, Article 112.
	Specification:  On or about 000923, found drunk while on duty as a messman.  Finding: Guilty.
	Charge III:  violation of the UCMJ, Article 128.
	Specification:  On or about 000923, unlawfully strike PFC C_, on the chest with his hands.  Finding: Guilty.
	Charge IV:  violation of the UCMJ, Article 134.
Specification: On or about 000923, willfully and wrongfully expose in an indecent matter to public his penis.  Finding: Dismissed.
	Sentence:  Confinement for 90 days, reduction to E-1, and forfeiture of $200.00 pay per month for 3 months.
	CA 010119:  The sentence approved and ordered executed however all confinement in excess of time served will be suspended for a period of twelve months from the date of trial, at which time, unless sooner vacated, the suspended portion will be remitted without further action.

040202:	Special Court Martial [trial dates 040121 & 040202].
	Charge I:  violation of the UCMJ, Article 111.
	Specification: On or about 030613, wrongfully control a vehicle.  Plea: Guilty.  Finding: Guilty.
	Charge II:  violation of the UMCJ, Article 112a (2 Specifications).
	Specification 1:  On or about 030618, wrongfully use marijuana.  Plea: 
Guilty.  Finding: Guilty.
	Specification 2:  On or about 030618, wrongfully possess and unknown amount of marijuana.  Plea:  Guilty.  Finding: Guilty.
	Additional Charge I:  violation of UCMJ, Article 86.
Specification: On or about 031117, without authority, absent himself from his unit, until on or about 031118.  Plea: Guilty.  Finding: Guilty.
	Additional Charge II:  violation of UCMJ, Article 121.
	Specification: Did, on or about 030906, steal a 1999 Jeep Cherokee. Plea: Not Guilty.  Finding:  Dismissed with prejudice.
	Sentence:  Confinement for 75 days, reduction to E-1, Bad Conduct discharge.  .
	CA 041014:  The sentence approved and, except for the bad conduct discharge, ordered executed.
	
040202:	Joined Base Brig, Marine Corps Base, Camp Pendleton, for confinement.

040401:	From confinement, restored to full duty [Extracted from DD Form 214]. 

040409:	Applicant physically qualified for separation.

040430:	Applicant to appellate leave.

041015:	Applicant to involuntary leave.

050222:	NMCCCA:  Affirmed findings and sentence.

050426:	Appellate review complete.

050427:	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 20050506 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).

Equity – Quality of service, isolated incident, minor offenses, and ability to serve was impaired by racial discrimination.  The Applicant contends that his discharge should be upgraded because his proficiency and conduct marks were good enough to be awarded a Good Conduct Medal; he was not the subject of NJP; his UA was a minor and isolated incident; that his substance abuse misconduct was for simple possession and did not involve selling or distribution of drugs.

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 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 P1900.16F), 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, Articles 111 (Drunken driving), 112 (Drunk on duty), 112a (Wrongful use, possession, etc., of controlled substances), 121 (Larceny), 128 (Assault, consummated by battery) and 134 (Indecent exposure).

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