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

 ex-Pvt, USMC
Docket No. MD04-01071

Applicant’s Request

The application for discharge review was received on 20040615.  The Applicant requested the characterization of service received at the time of discharge be changed to general/under honorable conditions.  The Applicant requested a personal appearance hearing before the board in the Washington, D.C. Metropolitan Area. The Applicant listed the Disabled American Veterans as his representative on the DD Form 293.  In the acknowledgement letter, the Applicant was informed the Naval Discharge Review Board (NDRB) first conducts a documentary review prior to any personal appearance hearing.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20041222.  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 feel that an upgrade to Gen. Under honorable Cond: after 4 years of good service then one bad mistake  Please consider a change of my discharge.”

Additional issues submitted by Applicant’s counsel/representative (DISABLED AMERICAN VETERANS):

2.  “Dear Chairperson:

After a review of the Former Service Members (FSM) DD Form 293 Application for the Review of Discharge or Dismissal from the Armed Forces of the United States and all of evidence assembled for review, we continue to note the contention of the appellant in her (his) request for a discharge upgrade of his current Bad Conduct discharge to that of General Under Honorable Conditions.

The FSM served on active service from February 20, 1996 to October 16, 2001 at which time he was discharged due to Court Martial.

Although the FSM makes no specific issues upon this application, we believe he is seeking equitable relief based on the character of his first period of serve and his post-service, as he submits character reference letters in support for the Boards review.

As the representative, we ask that consideration be given to equitable relief, as this is a matter that involves a determination whether a discharge should be changed under the equity standards, to include any issue upon which the applicant submits to the Board’s discretionary authority, under SECNAVIST 5420.174C.

We ask for the Board’s careful and sympathetic consideration of all the evidence of record used in rendering a fair and impartial decision.  These issues do not supersede any issues previously submitted by the applicant.

Respectfully,

K_ L. G_
National Service Officer”

Documentation

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

Applicant’s DD Form 214
Character reference, dtd March 20, 2004
Character reference, dtd March 25, 2004
Character reference, undated
VA Form 21-22

PART II - SUMMARY OF SERVICE

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

	Active:   			None			HON
	Inactive: USMCR (J)		960111 - 960219	COG

Period of Service Under Review:

Date of Enlistment:  960220		Date of Discharge:  011016

Length of Service (years, months, days):

	Active:    05  07  27		Inactive:  None

Age at Entry:  19			Years Contracted:  4

Education Level:  12			AFQT:  64

Highest Rank:  PFC			MOS:  1316 (Metal Worker)

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  4.0 (10)			Conduct:  3.7 (10)

Military Decorations:  None

Unit/Campaign/Service Awards:  None

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:

960815:	Counseled for deficiencies in performance and conduct.  [Lost ID card.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

970127:	NJP for violation of UCMJ, Article 92 (2 specs):  
Specification 1:  … violated MCDetO P11100.1H by possessing alcoholic beverages in the barracks.
Specification 2:  … knowingly violated a lawful order … concerning the wrongful possession of alcoholic beverages under the legal drinking age of 21.
Awd red to E-1.  Not appealed.

971001:	Counseled for deficiencies in performance and conduct.  [Habitual integrity violations which is resulting in leaders not wanting to believe you or trust you.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

980413:	NJP for violation of UCMJ, Article 91: … failure to obey a lawful order …
Awarded forfeiture of $242.00 per month for 1 month, and 14 days restriction and extra duties.  Not appealed.

981207:	Counseled for deficiencies in performance and conduct.  [Failure of the Alpha uniform/JOB/Wall locker inspection on 981029.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

990218:	NJP for violation of UCMJ, Article 92:  … violate MCO P1020.34 (Almar 194/96) by wearing a tongue ring/post.
Awarded forfeiture of $251.00 per month for 1 month, and 9 days restriction and extra duties.  Forf susp for 6 mos.  Not appealed.

990512:	NJP imposed and suspended on 990218 was vacated and the punishment was ordered executed.

990520:	NJP for violation of UCMJ, Article 134:  … did … bring discredit to the Armed Forces by breaking into a vehicle while drunk.
Awd red E-1, forfeiture of $400.00 per month for 1 month, and 45 days restriction and extra duties.  Forf susp for 6 mos.  Not appealed.

991209:	Medical evaluation for drug abuse found the Applicant to be a drug abuser, not drug dependent [cocaine]. 

000315:	Special Court-Martial.
	Charge I:  violation of the UCMJ, Article 112a:
	Specification:  … wrongfully use cocaine.
	Findings:  to Charge I and the specification thereunder, guilt
	Sentence:  Bad Conduct Discharge, 30 days confinement, forfeiture of $650.00 per month for 1 month.
	CA 001030:  Sentence approved and ordered executed except for the BCD.

000329:	To appellate leave.

010329:	NMCCMR:  Affirmed findings and sentence.

011016:	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 20011016 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).  

Issues 1 & 2:  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.  The Applicant's case was considered under the pertinent standards of equity to determine if any factors in his particular case merited clemency.  The records the Board reviewed showed no mitigating or extenuating factors sufficient to offset the seriousness of the offense for which the discharge was awarded.  Additionally, the record dose not support the Applicant’s contention he made “one bad mistake after 4 years of good service.”  The Applicant’s service record is marred by award of nonjudicial punishment (NJP) on four separate occasions, several negative page eleven counseling entries in addition to the court-martial for which he was discharged.  The record is devoid of any evidence the Applicant was not responsible for his conduct or that he should not be held accountable for his actions.  The Applicant’s summary of service clearly reflects his disobedience of the orders and directives regulating good order and discipline in the naval service, and demonstrated he was unsuitable for further service. An upgrade to general (under honorable conditions) would be inappropriate.  Relief is therefore denied.

The Board has no authority to upgrade a discharge for the sole purpose of enhancing employment opportunities and the Veterans Administration determines eligibility for post-service benefits not the Navy Discharge Review Board (NDRB).   In the Applicant’s case, the Board discovered no impropriety or inequity; thereby, considering the Applicant’s discharge proper and equitable.   The Board cannot grant relief on the basis of these issues.

The following is provided for the Applicant’s edification.  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 recharacterization 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.  The Applicant did not provided sufficient documentation for the Board to consider an upgrade.
 
The Applicant is reminded that she remains eligible for a personal appearance hearing, provided an application is received at the NDRB within 15 years from the date of her 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 P1900.16F), effective 01 September 2001 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 91, Insubordinate conduct toward a noncommissioned officer; Article 92, Failure to obey order or regulation; Article 112a, Wrongful use of controlled substances; Article 134, breaking into a vehicle while drunk.

C.  Secretary of the Navy Instruction 5420.174D of 22 December 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