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

 ex-PVT, USMC
Docket No. MD00-00092

Applicant’s Request

The application for discharge review, received 991019, requested that the characterization of service on the discharge be changed to honorable.  The applicant requested a documentary record discharge review.  The applicant did not list any representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 000720.  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/COURT-MARTIAL, authority: MARCORSEPMAN Par. 1105.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

1.  A U.S. former marine, I received a Bad Conduct discharge in which I disagreed with>  I requested clemency and was denied.  I then appealed, and was not granted.  I do not feel I'm an guilty of the charges they filed on me.  I only pled guilty, because they told me I would get out of the brig faster.  They said I was a high risk because I was a Military Police, and they couldn't intermix me with the other inmates, imagine living in a 6X8 ft cell for 90 days it was like living in a walk through closest. It was a night-mare.  The facts are my daughter passed away, and I filed a wrongful death case, Pro-Se I represented my-self and I had to be in CFC Court.  I requested leave and was denied.  Prior to all of this I requested a hardship discharge and was denied.  I had to be there. I went anyway.  I was charged with disobeying a lawful order and not being at the right place of duty at the right time.  The fact is I have a discharge I feel I don't deserve.  Please give my case special consideration. I worked hard in the military and have certificates to prove it.  A marine does not become a Military Police K-9 Handler without hard work and leadership.  I am a Senior in college at MSU in Wichita Falls, TX and plan to attend Law school next fall of 2000, I have been in training and college for the last 10 years, I do not plan to stop now.  This discharge is only going to slow m career down.  I plan to help people and use my experience to benefit someone else life.  Please consider this request as a last means to enhance my career, and better my life.  I know I deserve a better discharge than awarded.  I know in my mind and heart I served my country well, and would gladly served in combat to protect my country and the freedom so many people take for granted.  Respectfully Submitted.

Documentation

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

Copy of DD Form 214
Copy of Handgun Training Certificate
Copy of Certificate of Training Form (Semi-Automatic)
Copy of CPR Certificate
Copy of Standard First Aid Certificate
Copy of Wackenhut Security Certificate
Copy of United States Army Chemical Corps Regiment Certificate
Copy of Toxic Agent Training Certificate
Copy of United States Army Chemical School Diploma
Copy of Army National Guard Honorable Discharge Certificate
Copy of United States Army Honorable Discharge Certificate
Copy of Tactical Baton Certificate of Recognition
Copy of Drill Attendance Certificate
Copy of Meritorious Mast Certificate
Copy of Marine Combat Training Certificate
Copy of United State Air Force Military Working Dog Handler Course Certificate
Copy of Tactical Baton Certificate
Copy of Community CPR Certificate
Copy of Certificate of Technology from Odessa College
Copy of Superior Physical Fitness Achievement Certificate
Copy of Physical Fitness Test Certificate (300 points maximum)
Copy of United States Army Military Police School Diploma
Copy of Discharge Order from United States Army Reserve
Copy of Endorsement of Eligibility to Texas Commission of Law Inforcement
Copy of Lance Corporal Certificate
Copy of Certificate of Completion from Odessa College Law Enforcement Academy
Copy of Academic Transcript
Copy of Health Record Form (5pgs)
Copy of Court Order
Copy of Pre-Service Training Academy Letter (2pgs)
Copy of Pre-Service Training Course Certificate
Copy of Letter from Huntsville Human Resources Headquarters
Copy of Applicant Birth Certificate
Copy of High School Equivalency Certificate

PART II - SUMMARY OF SERVICE

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

	Active:   USA			930421 – 931012	COG
	Inactive: USMCR(J)		950131 - 950207	COG

Period of Service Under Review:

Date of Enlistment:  950208		Date of Discharge:  980320

Length of Service (years, months, days):

	Active:    02  09  22
	Inactive:  None

Age at Entry:  21			Years Contracted:  4 

Education Level:  12			AFQT:  62

Highest Rank:  LCpl

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  3.9 (4)			Conduct:  3.9 (4)

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM, ASM, Rifle Expert Badge, Pistol Expert Badge 

Days of Unauthorized Absence:  48 (excl confinment) 

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:

960326:	Counseled for deficiencies in performance and conduct.  [Unauthorized absence's from 1-4 March 96, 5-11 March 96 and 13-18 March 96.   Disobeying lawful orders issued by SSgt on 3 separate occassions.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

960328:	NJP for violation of UCMJ, Article 86: (3 Specifications), UA, violation of UCMJ Article 92: (3 Specifications), Failure to obey order or regulation.
	Award:  Forfeiture of $490.00 per month for 2 months, restriction for 60 days, reduction to E-2.  Appealed.

960327	Appeal denied.

960517:	Requested Humanitarian Transfer/Hardship Discharge based on father’s incarceration, step-mother’s disability, financial indebtedness, and loss of daughter.

960606:	CO disapproves request for hardship since no condition of hardship was evident.  (father was no longer incarcerated at the date of his request, that step-mother was supporting herself by working 2 jobs, that daughter’s death was prior to his enlistment in the Marine Corps, and that financial debts are not a justification for hardship discharge).

960522:	NJP for violation of UCMJ, Article 86: UA.
	Award:  Forfeiture of $437.00 per month for 2 months, extra duty for 45 days, reduction to E-1.  Appealed.

960606:	Appeal denied.

960610;	Pre-trial Confinement 960610-960801(51days) Judge ordered 51 days administrative credit against the sentence awarded by the court.

960607:	NJP for violation of UCMJ, Article 86: (3 Specifications), UA, violation of UCMJ Article 92: Failure to obey order or regulation.
	Award:  Forfeiture of $437.00 per month for 2 months, restriction and extra duty for 30 days.  Appealed.  No indication of appeal denied.  

960801:	Special Court-Martial.
	Charge I: violation of the UCMJ, Article 86 (3 Specifications):
	Specification 1: Without authority, failed to go at the time prescribed to his appointed place of duty on or about 960525.
	Specification 2: Without authority, fail to go at the time prescribed to his appointed place of duty on or about 960528.  Specification 3: Without authority, failed to go at time prescribed to his appointed place of duty between 960608 and 960610.
	Charge II: violation of the UCMJ, Article 95: Resist being apprehended by Cpl H_____ and LCpl M____, armed force policemen, persons authorized to apprehend the accused. Charge III: violation of the UCMJ, Article 134: Unlawfully enter the barracks room of LCpl K____.
	Findings:  to Charge I and specification 1, 2 and 3 thereunder, guilty.  To Charge II, and specification thereunder, guilty.  To Charge III and specification thereunder, guilty.  
	Sentence:  Confinement for 80 days, and a bad conduct discharge.
	CA 961120:  Sentence approved and ordered executed except for the BCD.
	
970918:	NC&PB denied clemency and restoration (EXTRACTED FROM NC&PB COMPUTER SYSTEM).

971023:	NMCCMR: Affirmed findings and sentence.

980310:	COMA: Petition for review denied.

980320:	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 980320 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).

In the applicant’s issue, the Board found the applicant was not a stellar Marine.  He had 5 periods of UA during his enlistment (not including confinement) which resulted in 3 NJP’s.  His request for a hardship transfer/discharge, containing inaccurate information, was not justified. The applicant went to a Special Court Marital where he pled guilty to 3 charges and was convicted of those charges. Given his prior military performance, his court-martial and sentence were appropriate.  Relief denied.    

 The following is provided for the applicant’s edification.  The NDRB is authorized to consider post-service factors in the recharacterization of a discharge (E).  The applicant must be aware that 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.  Outstanding post-service conduct, to the extent that such matters provide a basis for a more thorough understanding of the applicant’s performance and conduct during the period of service under review, may be considered by the NDRB.  The applicant is reminded that he is eligible for a personal appearance hearing provided the application is received within 15 years from the date of discharge.  Representation at personal appearance hearing is highly recommended.

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 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, 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 view DoD Directive 1332.28 and other Decisional Documents by going online at “afls14.jag.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:

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