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

FOR OFFICIAL USE ONLY

ex-PVT, USMC
Docket No. MD06-00948

Applicant’s Request

The application for discharge review was received on 20060703.  The Applicant requests the Discharge Characterization of Service received at the time of discharge be changed to honorable or 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 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.  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:  Applicant believes discharge is harsh considering circumstances

Documentation

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

Applicant’s DD Form 214

PART II - SUMMARY OF SERVICE

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

	Inactive: USMCR(J)	19870309 – 19870330	COG
		USMCR (DEP)	19880104 - 19880207	COG
	Active:    None

Period of Service Under Review:

Date of Enlistment:  19880208		Date of Discharge:  19910930

Length of Service (years, months, days):

Active:    03  07  23  (Does not exclude lost time.)
	Inactive:  None

Time Lost During This Period (days):

	Unauthorized absence:  29 days
	Confinement:		  None

Age at Entry:  24

Years Contracted:  4 

Education Level:  12				AFQT:  46

Highest Rank:  LCpl				MOS:  2111

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  4.4 (3)			Conduct:  4.4 (3)

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as stated on the DD Form 214):  Rifle 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:

900104:	Counseling:  Advised of deficiencies in performance and conduct (Failure of reporting to work on time due to transportation problems.), necessary corrective actions explained, sources of assistance provided.

900629:	Special Court Martial.
	Charge I:  violation of the UCMJ, Article 86.
	Specification 1:  Unauthorized absence 900326 - 900424, [29 days/S.]  Plea: Guilty.  Finding: Guilty. 
	Charge II:  violation of the UMCJ, Article 91.
	Specification:  Willful disobedience of an NCO’s lawful order.  Plea: Guilty.  Finding: Guilty.
	Sentence:  Confinement at hard labor for 30 days, reduction to E-1, Bad Conduct discharge.
	CA 901219:  On so much of the sentence as provides for a bad conduct discharge, and reduction to pay grade E-1, is approved, and except for the bad conduct discharge, will be executed.
	
910325:	NC&PB clemency not granted; restoration denied.

910530:	NMCCMR:  Affirmed findings and sentence.

910830:	Appellate review complete.

910923:	SSPCMO:  Article 71c, UCMJ, having been complied with, Bad Conduct discharge ordered executed.

910930:	DD Form 214:  Applicant discharged.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 910930 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).

The Applicant requests an upgrade to the characterization of his discharge because the punishment was too harsh given the circumstances.  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 contends his disciplinary problems were the result of stress caused by his family situation (the cancer and subsequent death of his father, mental health of his wife, and financial difficulties).  The NDRB recognizes that serving in the U.S. Marine Corps is challenging.  Our country is fortunate to have men and women willing to endure the hardships and sacrifices required in order to serve their country.  It must be noted that most members of the Marine Corps serve honorably and therefore earn their honorable discharges.  In fairness to those members, commanders and separation authorities are tasked to ensure that undeserving Marines receive no higher characterization than is due.  The NDRB found that the Applicant's service was equitably characterized.  Relief denied.

The following is provided for the edification of the Applicant.  The NDRB has no authority to provide additional review of this case since Applicant’s discharge occurred more than 15 years ago.  The Applicant may, however, petition the Board for Correction of Naval Records (BCNR), 2 Navy Annex, Washington, DC 20370-5100, concerning a change in the characterization of Naval service, if he desires further review of his case. 

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, Article 91 (Willful disobedience of an NCO’s lawful order).

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