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

 ex-Pvt, USMC
Docket No. MD99-01124

Applicant’s Request

The application for discharge review, received 990824, requested that the characterization of service on the discharge be changed to entry level separation or uncharacterized.  The applicant requested a personal appearance hearing discharge review.  The applicant did not designate a representative on the DD Form 293.  In the acknowledgement letter to the applicant, he was informed that the Naval Discharge Review Board (NDRB) first conducts a documentary review prior to any personal appearance hearing.

Decision

A documentary discharge review was conducted in Washington, D.C. on 000424.  After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, NDRB discerned no impropriety or inequity in the characterization of the applicant’s service.  The Board’s vote was unanimous that the character of the discharge shall not change.  The discharge shall remain:  BAD CONDUCT DISCHARGE/As a result of a courts-martial (SPCM) – Desertion, authority: MARCORSEPMAN Par. 1105.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

1.  I am asking to have my discharge upgraded in order to return to duty in the Marine Corps.  I have grown and matured in the years since I was on active duty and I have recognized my mistakes as well as learned from them.  I am confident that I will uphold the core valves of the U.S.M.C. and that I will serve my country and my Corps selflessly and wholeheartedly.  Thank you for considering my request.

Documentation

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

CNPB ltr to Honorable J_ P. M_ concerning Applicant dtd Jul 21, 1999
NPRC ltr to Honorable J_ P. M_ concerning Applicant dtd Feb 4, 1999
Certificate of Military Service reflecting BCD issued on Feb 3, 1999
Copy of DD Form 214
Character Reference letter from N_ C. M_, (2 pages) dtd 18 Feb 99
Character Reference letter from J_ D. S_, (2 pages) dtd 2 Feb 99

PART II - SUMMARY OF SERVICE

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

	Active:    None
	Inactive:  USMCR(J)		871223 - 880523	COG

Period of Service Under Review:

Date of Enlistment:  880524		Date of Discharge:  900703

Length of Service (years, months, days):

	Active:    02  01  10 (Does not exclude lost time)
	Inactive:  None

Age at Entry:  18			Years Contracted:  4

Education Level:  12	 (but didn't graduate)		AFQT:  40
		
Highest Rank:  PFC

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  2.94 (5)		Conduct:  3.28 (6)

Military Decorations:  None

Unit/Campaign/Service Awards:  Rifle Sharpshooter Badge 

Days of Unauthorized Absence:  107 (includes confinement)

Character, Narrative Reason, and Authority of Discharge (at time of issuance):

BAD CONDUCT DISCHARGE/As a result of a courts-martial (SPCM) - Desertion, authority:  MARCORSEPMAN Par. 1105.

Chronological Listing of Significant Service Events:

890118:	NJP for violation of UCMJ, Article 92:  did willfully disobey a lawful order given by Sgt O_ to keep his room clear; violation of UCMJ Article 86: failed to go at the time prescribed to Photo Sciences School, LAFB CO at 0601, 881108;  violation of UCMJ Article 86:  failed to go at the time prescribed to Photo Sciences School, LAFB, CO at 0601, 881129; violation of UCMJ Article 86:  failed to go at the time prescribed to Photo Sciences School, LAFB, CO at 601, 881208.
	Award:  Restriction for 30 days, reduction to E-1.  Not appealed.

890416:	To unauthorized absence since 1800.

890510:	Surrendered to HQBN SOI SAC MCB Camp Pendleton (24 days).

890511:	Counseled for deficiencies in performance and conduct (Article 86 - unauthorized absence).  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

890523:	To unauthorized absence since 0601.

890612:	Applicant's mother was sent a letter informing her of son's unauthorized absence. 

890623:	Applicant declared a deserter on 890523 having been an unauthorized absentee since 0601,890523 from SOI, MCB, Camp Pendleton.

890627:	Surrendered at 0925 at SOI, MCB, Camp Pendleton 35 (days).

890726:	To confinement, pre-trail. 

890828:	Special Court-Martial.
	Charge I:  violation of the UCMJ, Article 86 (3 Specifications):  Unauthorized absence
	Specification 1: On 16 Apr 89, absence from org until 10 May 89
	Specification 2: on 23 May 89, absence from org until 27 Jun 89
	Specification 3: on 4 Jul 89, absence from org until 5 Jul 89
	Additional Charge I:  violation of the UCMJ, Article 86 (2 Specifications):  Failed to go to appointed place of duty
	Specification 1: at 1220, 26 Jul 89, fail to go to appointed place of duty.
	Specification 2: at 1300, 26 Jul 89, fail to go to appointed place of duty.
	Charge II:  violation of the UCMJ, Article 91.
	Specification: On 26 Jul 89, was disrespectful in language toward Cpl K.R. L_, USMC
	Findings:  to Charge I and Additional Charge I and all specification thereunder, guilty.  To Charge II and specification thereunder, guilty.  
	Sentence:  Bad Conduct Discharge, confinement for 60 days and forfeiture of $450.00 pay per month for 2 months.
	CA 891109:  Sentence approved and ordered executed except for the BCD.
	
890828:	To confinement, Sentence of SPCM.

891010:	From confinement, to duty.

891120:	To appellate leave.

900112:	NMCCMR:  Affirmed findings and sentence.

900307:	NC&PB denied clemency and restoration.

900612:	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 900703 with a bad conduct discharge which was the sentence adjudged by a properly constituted special court martial that was determined to be legal and proper, affirmed in the legal chain of review and executed (A and B).  The Board presumed regularity in the conduct of governmental affairs (C).  After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, the Board found that the discharge was proper and equitable (D and E).

The NDRB is authorized to consider post-service factors in the recharacterization of a discharge (D).  However, 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 the civilian life subsequent to leaving the service.  Normally, to permit relief, an error or injustice must have been found to have existed during the period of enlistment in question.  No such error or injustice is evident in the applicant’s service record.

The applicant is reminded that he is eligible for a personal appearance hearing within 15 years from the date of his discharge.

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 [ e.g., Article 86, unauthorized absence for more than 30 days].

C.  Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 2, AUTHORITY/POLICY FOR DEPARTMENTAL DISCHARGE REVIEW.  

D.  Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 9, paragraph 9.2, PROPRIETY OF THE DISCHARGE.

E.  Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 9, paragraph 9.3, EQUITY OF THE DISCHARGE.

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 Directive 1332.28, you may submit a complaint in accordance with Enclosure (5) of that Directive.  You should read Enclosure (5) of the Directive 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 obtain a copy of DoD Directive 1332.28 by writing to:

		DA Military Review Boards Agency
		Management Information and Support Directorate
		Armed Forces Reading Room
		Washington, D.C.  20310-1809

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:

		Naval Council of Personnel Boards
		Attn:  Naval Discharge Review Board
		Washington Navy Yard
		720 Kennon Street SE Rm 309
		Washington, D.C.  20374-5023