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

 

ex-PVT, USMC
Docket No. MD04-00788

Applicant’s Request

The application for discharge review was received on 20040408.  The Applicant requests the characterization of service received at the time of discharge be changed to general/under honorable conditions or uncharacterized.  The Applicant requests a documentary record  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 20050304.  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.
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PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

1.  “The issue that has arrissen in the last week.  Being the 15th of March 2004.  I was working for Fraser Boiler & Ship Repair through Delphinous a Government Contractor at Norfolk Naval Ship Yard as a Boiler Maker.  The Yard or NNSY has been very interested in me.  Through comments such as “you need to work here” or “you would do very well here” or “we could use a guy like you with your skills”.  All offers were very nice but a little herassing so I politely responded with I can not work a government service job due to the fact that I have a Bad Conduct Discharge.  Well about 4 days after making that truthful statement I was let go by my company at customer request.  So intern I feel I lost my job because I told the truth about my past.  Also you need to known that I wasn’t just a worker for my company  but Supervisor or a Foreman.  So that being said I hope it gives some insight to the fact that I know my craft, which was never outlined to me not to seek employment into.  If I would have known I would never have pursued a career as a boilermaker but I’ve spent a lot of time and effort into my craft and I can’t afford to start into another line of work.  A lot of things have changed in my life since I was in the service.  I have a wife a home of my own, a child.  That and I know what I did was wrong.  That being said I just want to be able to do what I do for a living.  It been 10 years since I made those mistakes other Members in the Armed forces were discharged for the reason  I was discharged were given Other Than Honorable discharges.  That and if you look at my Court Martial proceedings you’ll see that even my Platoon SGT testified on my behalf.”

Documentation

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

Letter from Applicant, undated

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: USMCR(J)		920520 - 920809	COG

Period of Service Under Review:

Date of Enlistment:  920810		Date of Discharge:  960201

Length of Service (years, months, days):

	Active:    03  03  19  (Does not include lost time)
	Inactive:  None

Age at Entry:  20			Years Contracted:  4 

Education Level:  12			AFQT:  69

Highest Rank:  LCpl			MOS:  0352

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  4.2 (4)			Conduct:  3.7 (4)

Military Decorations:  None

Unit/Campaign/Service Awards:  RMB, NDSM

Days of Unauthorized Absence:  None

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:

940109:	Counseled for deficiencies in performance and conduct.  [Illegal Drug Involvement specifically possession and usage of Methamphetamine.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

940113:	NJP for violation of UCMJ, Article 112a: On or about 931206, did at an unknown location, wrongfully use a controlled substance, to wit: methamphetamine.
Awarded forfeiture of $466.00 pay per month for 2 months, restriction and extra duties for 45 days, reduction to E-2.  Not appealed.

940422:	Applicant advised of rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation.

940601:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse.

940601:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse.  The factual basis for this recommendation was your non-judicial punishment dated 940113 evidencing your use of a controlled substance, specifically methamphetamine.  

940621:	SJA review determined the case sufficient in law and fact.

940624:	GCMCA [Commanding General, 1st Marine Division (Rein)] directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to drug abuse.

940826:	Pre-trial confinement from 940826 to 941029 (64 days).
	
940930:	Special Court-Martial.
	Charge I:  violation of the UCMJ, Article 112a.
	Specification: Did between 940602 and 940609, wrongfully use marijuana.
	Findings:  to Charge I and specification thereunder, guilty.   
	Sentence:  Forfeiture of $555.00 pay per month for 2 months, reduction to E-1, and a bad conduct discharge.
	CA action: 950224.  Sentence approved and ordered executed except for the BCD.  The accused will be credited 64 days against the sentence to confinement.
	
941026:	Appellate leave approved.

950622:	NC&PB denied clemency and restoration.

951027:	NMCCMR:  Affirmed findings and sentence.

960129:	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 19960201 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.  The Applicant was found guilty at court-martial of illegal drug use.  He also had a previous NJP for the same offense.  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.  The Applicant’s case was considered under the pertinent standards of equity to determine if any factors in this particular case merited clemency.  After a thorough review of the Applicant’s record and issues submitted, the Board determined that clemency was not warranted and that the sentence awarded the Applicant at his court-martial was appropriate for the offenses he committed.  Relief denied.

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 112a, illegal drug use.

C.  Secretary of the Navy Instruction 5420.174D of 22December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part II, 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 “http://Boards.law.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:

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