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

 ex-PVT, USMC
Docket No. MD04-00608

Applicant’s Request

The application for discharge review was received on 20040225.  The Applicant requests the characterization of service received at the time of discharge be changed to general/under honorable conditions.  The Applicant requests 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 20041001.  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:

1.  “I would like the Board to review my reentry code.  Currently my reentry code is Re-4.  With a reentry code of 4, I am unable to reenlist in the military.  I would like the Review board to review my reentry code and upgrade it so that I may reenlist.  The code does not need to be a Re-1 but at least a Re-3.  With a Re-3 I will be able to reenlist and start a new career in the military.  I have learned from my mistakes and believe that I would be an excellent asset to the military.  I have enclosed several references to attest to my sincerity and devotion to my family, friends and my schooling.  I believe that I can rectify my past proudly serve the United States of America.”

2.  “I would like the Board to review my discharge.  I would also ask that the board upgrade my discharge so that I may reenlist into the military.  I understand that I may be asking for a lit from the Board, but I would like a second chance, chance not to erase my past mistakes but a second chance to help my country and my family lead a freelife.  I regret that path that I chose previously and now I know that I made a terrible mistake.  I feel ashamed and dishonorable of the way that I and the Marine Corps separated our ways.  If given this chance I believe that I would be an excellent asset to the military because I have learned a lot form the mistake that I made.”

Documentation

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

Copy of DD Form 214
Ltr from H_ S_ dtd 2 Dec 03
Ltr from M_ C_ dtd 9 Nov 03
Ltr from J_ M_ dtd 5 Nov 03
Ltr From Sgt C_ P_ dtd 2 Nov 03
Ltr from J_ A_ dtd 25 Oct 03
Appointment to Dean’s List, Lorain County Community College dtd 30 Jun 03

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: USMCR(J)		941206 - 950129	COG

Period of Service Under Review:

Date of Enlistment:  950130		Date of Discharge:  970805

Length of Service (years, months, days):

	Active:    02  06  07 [does not exclude lost time]
	Inactive:  None

Age at Entry:  20			Years Contracted:  4 

Education Level:  12			AFQT:  34

Highest Rank:  PFC			MOS: 0300

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  *NMF			Conduct:  NMF

*No marks found in record

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM 

Days of Unauthorized Absence:  244 

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:

950214:	Page 11 entry: [Drug usage confirmed by urinalysis testing on 950206.  Ref NAVDRUGLAB GREAT LAKES IL MSG 140836Z]

950303:	CG, CO RTR MCRD ltr 1900/lTRTS1 dtd 950303, waived the defect in this case and authorized retention.

950604:	Applicant to UA.

950724:	Applicant from UA [50 days].

950904:	Applicant to UA.

960316:	Applicant from UA [194 days].
	
960416:	Special Court-Martial.
	Charge I:  violation of the UCMJ, Article 86, unauthorized absence from 4 Sep 1995 until apprehended on or about 16 Mar 1996 [194 days].
	Findings:  to Charge I and specification thereunder, guilty.  
	Sentence:  Confinement for 50 days, reduction to E-1, and a bad conduct discharge.
	CA 960730:  Sentence approved and ordered executed except for the BCD.

970221:	NMCCMR:  Affirmed findings and sentence.

970724:	COMA:  Petition for review denied.

970805:	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 19970805 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.  Concerning a change in reenlistment code, the NDRB has no authority to change reenlistment codes or make recommendations to permit reentry into the naval service or any other of the Armed Forces.  The NDRB has no jurisdiction over reenlistment, reentry, or reinstatement into the Navy or Marine Corps.  Reenlistment policy of the naval service is promulgated by the Commandant, United States Marine Corps, Code MMEA, 3280 Russell Road, Quantico, VA 22134.  Neither a less than fully honorable discharge nor an unfavorable "RE" code is, in itself, a bar to reenlistment.  A request for a waiver is normally done only during the processing of a formal application for enlistment through a recruiter.  

Issue 2.  The Applicant’s case was considered under the pertinent standards of equity to determine if any factors in this particular case merited clemency.  The NDRB found the evidence of record did not contain sufficient mitigating or extenuating factors to offset the seriousness of the offenses for which the discharge was awarded.  In addition, the reason for discharge, convicted by special court-martial, is most appropriate.  Relief denied.

The Applicant remains eligible for a personal appearance hearing, provided an application is received, at the NDRB, within 15 years from the date of 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 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.  

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