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

 ex-Pvt, USMC
Docket No. MD04-01209

Applicant’s Request

The application for discharge review was received on 20040723.  The Applicant requested the characterization of service received at the time of discharge be changed to general/under honorable conditions.  The Applicant requested a documentary record discharge review.  The Applicant did not list a representative on his DD Form 293.  Subsequent to the application, the Applicant obtained representation from the American Legion.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20050224.  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. “Sir or madam,

I sincerely hope you agree to give me the opportunity to prove my Patriotism for my country.  I know it hasn’t been a very long time since I’ve been discharged, but It didn’t take me long to know I messed up.  I know Its my fault, but I don’t want to go through life not being able to hold my head up high with pride.  I don’t know much else to say but, Im truly sorry and regretful for what I didn’t.  I know I deserved A BCD, but now all I’m asking for Is an upgrade so I can fix it.
 Sincerely,
 S_ R. P_ (signed) (Applicant).”

Additional issues submitted by Applicant’s attached to his DD 293:

2. “Dear Sir or Madam:

My name is S_ R P_ (Applicant). I’m writing you this letter in regards to my discharge from the Marine Corps. When I graduated high school, all I wanted to do was be a rifleman in the U.S. Marines.I was so motivated, even with everyone telling me I wouldn’t make it because I didn’t have what it took. I knew I did and I was out to prove it. Well halfway through basic, one of my aunts told me there was some problems at home. I kept going knowing that I could take care them after training. I got home and my mother explained the situation to me and I decided I would just send money home until I got to my permenant duty station where I could set up an enlottment. I did that and it was o.k. for a while but then the money situation got to me and I got increasingly stressed out and decided to talk to the chaplain. They decided to send me home for a while and let me work on the problem from there. So I went home checked in with the reserve station and I was told it would be a matter of months before I would know the results of my package. I went home and two weeks later came back and was told to report back to my unit. I was upset and made the biggest mistake of my life. I stayed home with a chip on my shoulder because I felt the core had cheated me. I know that It doesn’t matter If I felt cheated or not. It wasn’t about me, It was About 2nd battalion 7th Marines. That’s where I messed up. I forgot one of most important things we were taught in basic, that there is no I in team. I left my team in California. For that I will always be sorry. No matter what the outcome of this letter, because I will never see my brothers in Ecko co. again. That’s far worse to me than any punishment I could have received. When I finally went back to California I was put in the brig, which I deserved, and when let out I was with another unit, Needless to say they didn’t like me and I can’t say I was to fond of them either. My lawyer told me I could stay in, but it would be with this unit. I said if I couldn’t be with my unit then I would rather go home. He told me he could get me a General discharge but it would take 6 to 8 months. I asked was there a faster way, he told me yes, I could go on Appellet leave. When I asked how he told me I would have to get a Bad conduct discharge. I told him I wanted to request a BCD. I was foolish and had a chip on my shoulder that is causing me more pain now than it was ever worth. I realize I have made some very big mistakes, but please believe I have learned and am still learning. I Don’t want an upgrade so I can make my record look pretty. I want it so I can re-enter and finish my time right. To me, If a person doesn’t finish his time He should have to wear that burden until he does. Sir or Madam, I’ve been home since October of 2000. I finally received my dd2l4’s in 2002. I’ve had a lot of time to think about what I did. Especially while having to watch my fellow Americans fight and die on the news while I do nothing. That’s more than I can handle. I know if you let me, I can be a valuable asset to our military. I love being a firefighter, but not more than being a Marine. I’ll do anything to get back in, just name it. I’ll volunteer for any service you see fit. Just give me a chance to prove myself

Sincerely,
S_ R. P_ (Applicant)
(signed)”

Issues submitted by Applicant’s counsel/representative (AMERICAN LEGION):

3.  “Equity Issue:  Pursuant to 10 USC 874 (b) (UCMJ, Article 74) and in accordance with SECNAVINST 5420.174D, Part IV, Paragraph 403 m (7), on behalf of this former member we request the Board’s clemency relief with up-grade of his characterization of service on the basis of his post-service conduct. 
_______________________________________________________________________

In accordance with Title 32, CFR, Section 724.166 and SECNAVINST 5420.174D, part I, paragraph 120, The American Legion submits to the Naval Discharge Review Board (NDRB or Board) the above issue and following statement in supplement to this Applicant’s petition. 

Review of the service record reveals that this former member maintained PRO/CON markings of 2.0/1.5 and earned the REB.  On 000830, he was convicted by SPCM for VUCMJ, Article 86.  Following approval by the convening authority and affirmation by the NMCCA, he was separated on 020426 with a Bad Conduct Discharge due to conviction of a court martial as authorized by MARCORSEPMAN, Paragraph 1105.

Essentially, as noted on DD Form 293, this Applicant is requesting that his discharge be upgraded because he regrets his misconduct of record and because he has been a productive citizen since his separation.  He has submitted 8 pages of additional documentation attesting to his good post-service character, hard work and educational pursuits for consideration.

The American Legion’s express purpose in providing this statement and any other submittals or evidence filed is to assist this Applicant in the clarification and resolution of the impropriety or inequity raised.  To that end, we rest assured that the NDRB’s final decision will reflect sound equitable principles consistent in law, regulation, policy and discretion as promulgated by Title 10, USC, Section 1553, and set forth in Title 32, CFR, Part 724 and SECNAVINST 5420.174D.

This case is now respectfully submitted for deliberation and disposition.”

Documentation

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

Certificate of Completion, Fire Fighter 1001-I-II, dtd 4 April 2003
Mississippi Fire Personnel, certification, dtd May 14 2003
Continuing Education Certificate, dtd 4/4/03
Apparatus Operations Certificate, dtd 16 April 2004
Training Certificate, School Buss Rescue Extraction, dtd 30 October 02
Emergency Medical Care Certificate, dtd 21 January 2003
Character reference, undated
Character reference, undated
Applicant’s DD Form 214(3 copies)
NCPB reply to Congressional Inquiry, dtd July 21, 2004
Congressional Inquiry, dtd June 15, 2004
EMT-Driver Operator Certificate, dtd 22 April 2004
Character reference, dtd 03/04/2004
Congressional Inquiry, dtd September 7, 2004
Photocopied paper slip

PART II - SUMMARY OF SERVICE

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

	Active:   			None			HON
	Inactive: USMCR (J)		980926 - 990705	COG

Period of Service Under Review:

Date of Enlistment:  990706		Date of Discharge:  020426

Length of Service (years, months, days):

	Active:    02  04  18 (Accounts for lost time.)
	Inactive:  None

Age at Entry:  18			Years Contracted:  4 

Education Level:  12			AFQT:  38

Highest Rank:  PFC			MOS:  0311 (Rifleman)

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  2.0 (*)			Conduct:  1.5 (*)

Military Decorations:  None

Unit/Campaign/Service Awards:  None

Days of Unauthorized Absence:  (94) 20000327-20000628

	* Extracted from the Applicant’s Record of Trial.

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:

000327:	Applicant to UA.

000628:	Applicant from UA.

000705:	Applicant to confinement.

000829:	From confinement, to duty.

000830:	Special Court-Martial.
	Charge I:  violation of the UCMJ, Article 86:
	Specification:  UA, from on or about 27 Mar 00 until on or about 5 July 2000.
	Findings:  to Charge I and the specification thereunder, guilty.  
Sentence:  Bad conduct discharge, confinement for 56 days, and reduction to Pvt, E-1.
	CA 000830:  Sentence approved and ordered executed except for the BCD.

001020:	To appellate leave.

020110:	NMCCMR:  Affirmed findings and sentence.

020426:	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 20020426 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 & 3:  In response to the Applicant's issues, 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 this particular case merited clemency.  The service records that 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.

Issue 2:  Concerning the Applicant’s desire to “re-enter and finish (his) time right,” the NDRB has no authority to change reenlistment codes or 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.  This issue does not serve to provide a foundation upon which the Board can grant relief.    

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 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 a continuing 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 Board was impressed with the Applicant’s dedication to community service through his training as a firefighter and an EMT.  However, 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 P1900.16F), 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 86, unauthorized absence for more than 30 days.

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