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

 ex-Pvt, USMC
Docket No. MD04-00184

Applicant’s Request

The application for discharge review was received on 20031107.  The Applicant requests the characterization of service received at the time of discharge be changed to honorable, general/under honorable conditions, entry lever separation or uncharacterized.  The Applicant requests a documentary record discharge review.  The Applicant did not list a representative on his DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20040812.  After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, no impropriety or inequity in the characterization of the Applicant’s service was discovered by the NDRB.  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, as stated

Applicant’s issues, as stated on the application:

Issue 1:  “To the judge, your honour,
My name is J_ D. R_ (Applicant) and honorably address the court in pity.  In pity of myself and what I did to myself, my family and my country.  At first I blamed it on my officers in command, the fact that I felt that they were too hard on me.  And then my parents, the fact that I felt that they abused me as a child and didn’t raise me to become a strong individual.  But all that aside I realized that there was no one but myself to blame.  I realize now that when I enlisted into the military that I was only 19 yrs. old and really wasn’t prepared to be the man I thought I was or the man the military wanted me to be.  I wasn’t sure of what I wanted for myself.  I thought going to the military was the best idea for me since I was going to be starting a new family soon, but I lost sight of that during my enlistment.  I disappointed my family, my wife and daughter, my country and myself.
Now it is 6 yrs. later from my original enlistment and I look to myself and know now the man I would like to be.  I would like to be a man who’s able to stand proud and say I am one of the few, the proud and the brave that serves this great country of ours.  I myself and my wife and daughter now live a happy and good life where we don’t have to struggle everyday to make ends meet and live low class surburban life.  now I can be the husband and father that I was always meant to be and be a role model to others under me and be proud to say that I am the first marine in the history of my family.  My goals are to reinlist in the military and to someday own my own business like my father.
I believe that overturning my discharge to honorable will help me furthe myself in life, to reach these goals I have set before myself and to further aid my country.”

Documentation

Applicant marked the box "WILL NOT BE SUBMITTED.  PLEASE COMPLETE REVIEW BASED ON AVAILABLE SERVICE RECORDS;" however, there was a copy of the Applicant’s DD Form 214 attached to the request for discharge review.

PART II - SUMMARY OF SERVICE

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

	Active:   USMC		None			HON
	Inactive: USMCR (J)		980402 - 980419	COG

Period of Service Under Review:

Date of Enlistment:  980420		Date of Discharge:  000906

Length of Service (years, months, days):

	Active:    01  10  28 (Lost time included.)
	Inactive:  None

Age at Entry:  19			Years Contracted:  4 

Education Level:  12			AFQT:  64

Highest Rank:  PFC

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  2.7 (5)			Conduct:  3.2 (4)

Military Decorations:  None

Unit/Campaign/Service Awards:  None

Days of Unauthorized Absence:  (169) 981212 - 990601 

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:

981029:	Counseled for deficiencies in performance and conduct.  [… deficiencies in the areas of personal appearance, attitude, responsibility, dependability, initiative, maturity and judgment.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

990112:	Applicant declared a deserter having been an unauthorized absentee since 0701, 981213 from 2d LAR Bn, 2D MARDIV, MARFORLANT.

990426:	Applicant apprehended by civil authorities.  Returned to military control 990428. 

990428:	Pre-trial confinement.

990528:	Special Court-Martial.
	Charge I:  violation of the UCMJ, Article 86:
	Specification:  Did, on or about 13 December1998, without authority, absent himself from his organization, and did remain so absent until he was apprehended on or about 26 April 1999.
	Findings:  to Charge I and the specification thereunder, guilty.   
	Sentence:  Bad conduct discharge, 45 days confinement, and reduction to E-1.
	CA 991207:  Sentence approved and ordered executed except for the BCD.

990602:	From confinement, to duty.

991207:	To appellate leave.

000615:	NMCCMR:  Affirmed findings and sentence.

000906:	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 20000906 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).  The Board presumed regularity in the conduct of governmental affairs (C).  

Issue 1:  In response to the Applicant's issue, relevant and material details 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 tried under the Uniform Code of Military Justice, the action of the NDRB is restricted to upgrades based upon clemency only (C, Part IV).  The Applicant's case was considered under the pertinent standards of equity to determine if any factors in this particular case merited clemency.  The service records the Board reviewed showed no mitigating or extenuating factors sufficient to offset the seriousness of the offenses for which the discharge was awarded.  Relief is therefore denied.

The NDRB has no authority to make recommendations to permit reenlistment, reentry, or reinstatement into the Naval Service or any other branch of the Armed Forces.  Neither a less than fully honorable discharge nor an unfavorable “RE” code is, in itself, a bar to reenlistment.  A request for waiver is normally done only during the processing of a formal application for enlistment through a recruiter.

The Board has no authority to upgrade a discharge for the sole purpose of enhancing employment opportunities as requested in the issue.  Regulations limit the Board’s review to a determination on the propriety and equity of the discharge.  As stated above, the Board discovered no impropriety or inequity in the Applicant’s case and therefore considers his discharge to be proper and equitable.   Relief denied.  
 
The following is provided for the edification of the Applicant.  There is no law or regulation that provides for an unfavorable discharge to be upgraded based solely on the passage of time or good conduct in the civilian life subsequent to leaving the service.  However, the NDRB is authorized to consider post-service factors in the recharacteriza-tion of a discharge.  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.  Verifiable proof of post-service accomplishments must be provided in order for the Applicant to claim post-service conduct and behavior as a reason to upgrade a less than honorable discharge.  Evidence of continuing educational pursuits, an employment record, documentation of community service, certification of non-involvement with civil authorities, and credible evidence of a substance-free lifestyle are examples of verifiable documents that may be provided to receive consideration for relief based on post-service conduct.  At this time, the Applicant has not provided sufficient documentation for the Board to consider an upgrade.
 
The Applicant is reminded that he remains eligible for a personal appearance hearing, provided an application is received at the NDRB within 15 years from the date of his 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 P1900.16E), effective 950818 until 010831. 

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 86, unauthorized absence.

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.  

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