ex-Pvt, USMC
MD06-01022

Current Discharge and Applicant’s Request:

Application Received:  				20060728     
Narrative Reason for Separation:			
Character of Service:				BAD CONDUCT DISCHARGE
Discharge Authority:				MARCORSEPSMAN PAR 1105     
Last Duty Assignment/Command at Discharge:	2DCBTENGRBN 2DMARDIV CAMLEJ NC     

Applicant’s Request:
	Narrative Reason change to: 		not requested
	Characterization change to:		
	Review Requested:			
Representation:  					 designated

Decision:

Date of Decision:					20070427
The Discharge shall remain:			BAD CONDUCT
						
The Board found that clemency was:	 	
Vote (characterization/reason)			/ 
Location of Board:				Washington D.C.
Complete Service Record:				
Complete Medical Record:			
Discharge Package Complete:			

Summary of Service:

Prior Service:
Inactive: USMCR (DEP)				19960503-19961103     
Active:        		               		NONE     
Period of Service Under Review:
Date of Enlistment:  				19961104     
Years Contracted:  				;        
Date of Discharge:				20000831
Length of Service:				03  Yrs  09  Mos  28  Days (Does not exclude lost time)
Time Lost During This Period:			UNAUTHORIZED ABSENCE: NONE   
						CONFINEMENT:  73 DAYS       
			
Education Level:  				
Age at this Enlistment:  				
AFQT:  						48
MOS:						1141
Highest Rate/Rank:				LCpl

Performance Evaluation Averages (number of marks):
Proficiency / Conduct:				 4.3 (2)  4.3 (2)
	
Awards and Decorations (as listed on the DD Form 214):
MERITORIOUS UNIT COMMENDATION (MCRC 950731-970630), LETTER OF APPRECIATION, RIFLE MARKSMAN BADGE    

Service Record Entries Related to Characterization of Service or Narrative Reason for Separation

19960502:	Applicant briefed on and certified understanding of Marine Corps policy concerning illegal use of drugs.

19960503:	Applicant granted waiver for pre-service drug use.

19980608:	Special Court Martial 
	Charge:  violation of the UCMJ, Article 112a.
	Specification:  Wrongfully use marijuana.  Plea: Not Guilty.  Finding: Guilty.
	Sentence:  Confinement for 30 days, forfeiture of $500 per month for 2 months, reduction to E-1.
	CA 19980622:  Sentence approved and will be executed.

19980702:	From confinement, to duty. 

19981207:	Special Court Martial [trial dates 981014, 981207]
	Charge:  violation of the UCMJ, Article 112a.
	Specification:  Did, at an unknown location, between on or about 19980523 and on or about 19980607, wrongfully use marijuana.  Plea: Guilty.  Finding: Guilty.
	Sentence:  Confinement for 3 months, forfeiture of $600 per month for 3 months, Bad Conduct discharge.
	CA 19991122:  Sentence approved and, except for the bad conduct discharge, will be executed, but confinement in excess of sixty (60) days suspended for a period of one (1) year from the date of trial, at which time, unless sooner vacated, the suspended portion will be remitted without further action.

19990125:	From confinement, to duty. 

19990129:	Applicant to appellate leave.

19991118:	Applicant to involuntary appellate leave.

20000612:	NMCCCA:  Affirmed findings and sentence.

20000824:	Appellate review complete.

20000831:	SSPCMO 00-758:  Article 71c, UCMJ, having been complied with, bad conduct discharge ordered executed.

Additional Information Considered by Board

Type of documentation submitted by the Applicant and considered by the Board
       
       	Document Type					#Pages
       Related to Period of Service:
	Service/Medical Record:				1     
	Other Period of Service:				0     
       Related to Post-Service Period:
	Community Service:				0     
	Education:					0     
	Employment:					0     
	Health/Medical:					0     
	Character Statements:				0     
	Criminal Records Checks:				0     
	Additional Statements from Applicant:		0     
        Other Documentation					0     

        Total Number of Pages:				1      

Discussion

Propriety and Equity
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.

Applicant’s Issues (as summarized by the NDRB):
1.  Family circumstances led to misconduct.
2.  Post-service conduct mitigates misconduct.

Acceptance of Applicant’s Issues:
The Board accepted Issue(s) 1-2 for consideration.  

Issue 1 (Equity).  The NDRB found no evidence that the Applicant’s wrongful drug use was not of his own doing.  He admitted in court that he could have avoided using marijuana if he had wanted to.  The Applicant’s subsequent regret regarding the consequences of his misconduct does not constitute a justification for the misconduct.  Relief is not warranted on this issue.

Issue 2 (Equity).  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 a substance free lifestyle 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.

Minority Opinion

None

Pertinent Regulation/Law
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.   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 V, Para 502, Propriety and Para 503, Equity.