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

ex-PVT, USMC
Docket No. MD04-00375

Applicant’s Request

The application for discharge review was received on 20031218.  The Applicant requests the characterization of service received at the time of discharge be changed to honorable.  The Applicant requests a personal appearance hearing discharge review before the Board in the Washington National Capital Region.  The Applicant did not list any representative on the DD Form 293.

Decision

A personal appearance hearing was conducted in Washington, D.C. on 20041013.  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 4-1 that the character of the discharge shall not change.  The discharge shall remain:  BAD CONDUCT DISCHARGE/As a result of a courts-martial (SPCM) – Other, authority: MARCORSEPMAN Par. 1105.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

“During my tenure with the Marine Corps, I was a stellar performer until I was transferred to my home area, Maryland.  I was at fault for my behavior but to be penalized as I was for one infraction, I would like reviewed.  I have a drug & alcohol problem that I have successfully addressed through treatment & AA and have been a contributing member of my community for over 17 yrs.  I am disgraced over my actions and part of my recovery is to address these issues.  I am a father of 4 and was in no trouble up to this incident or since.  I am proud of my service and would deeply appreciate the board reviewing my entire career and life as whole and to finally clear up one, no, the most outstanding open issue of my life.”

Documentation

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

Letter from Applicant dated June 16, 2004 (2 pages)
Copies from Service Record (54 pages)
Copy of DD Form 214

PART II - SUMMARY OF SERVICE

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

	Active:   USMC		791107 - 821203	HON
	Inactive: USMCR(J)		790815 – 791106	COG

Period of Service Under Review:

Date of Enlistment:  821204		Date of Discharge:  890524

Length of Service (years, months, days):

	Active:    05  03  28
	Inactive:  None

Age at Entry:  22			Years Contracted:  6

Education Level:  13			AFQT:  94

Highest Rank:  SSGT

Final Enlisted Performance Evaluation Averages: All enlisted performance reports were available to the Board for review. 

Military Decorations:  None

Unit/Campaign/Service Awards:  GCM(w1*), MM(2), LOA(9), REB, PSB 

Days of Unauthorized Absence:  None 

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:

870602:	Counseling [I have been counseled this date concerning my being assigned to the Marine Corps weight control program.  My present weight is 231 lbs, the loss of 21 pounds within (6) months; 4 lbs per month has been determined to be a realistic goal.]

870716:	NJP for violation of UCMJ, Article 86: Did on or about 0801, 870711 without authority failed to go to at the time prescribed to his appointed place of duty, to wit: MarBks, Anna Officer of the Day.
	Award:  Punitive letter of reprimand, restriction for 60 days (suspended for 6 months).  No indication of appeal in the record.

871015:	NAVDRUGLAB [NAS NORFOLK], reported Applicant’s urine sample tested positive for [cocaine].

880111:	Special Court-Martial (11 Jan, 4, 5 and 6 Feb 88).
	Charge I:  violation of the UCMJ, Article 112a,
	Specification 1: Did on or shortly prior to 871015, wrongful use cocaine 
	Findings:  to Charge I and specification 1 thereunder, guilty.
	Sentence:  Reduction to E-1, and a bad conduct discharge.
	CA 880401:  Sentence approved and ordered executed except for the BCD.
	
880401:	To appellate leave.

880707:	Waiver/Withdrawal of Appellate Rights to Review by a Court of Military Review.

880720:	Motion to withdraw case from Appellate Review.

880728:	NMCCMR granted appellant’s motion to withdraw case from appellate review and returned record of trial to the Judge Advocate General.

880811:	Staff Judge Advocate’s review of BCD Special Court-Martial indicates the awarded sentence was legal.

890328:	NC&PB denied clemency and restoration.

890503:	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 19890524 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 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 bad conduct discharge awarded by his Special Court-Martial was appropriate for the offenses for which he was found guilty.  

The following if provided for the edification of the Applicant.  The NDRB has no authority to provided 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 P1900.16C), effective 821001 until 890626. 

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 112a, wrongful use of a controlled substance.

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