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

 ex-Pvt, USMC
Docket No. MD04-01477

Applicant’s Request

The application for discharge review was received on 20040921.  The Applicant requests the characterization of service received at the time of discharge be changed to uncharacterized and the reason for the discharge be changed to entry level separation.  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 20050713.  After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, the Board determined that clemency was not warranted and that the characterization of discharge was appropriate.  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:

1.  “Dear DRM:

The following issues are the reasons I believe my discharge should be upgraded to Honorable.  If you disagree, please explain in detail why you disagree.  The presumption of regularity that might normally permit you to assume that the service acted correctly in characterizing my service as less than honorable does not apply to my case because of the evidence I am submitting.

Since my release from camp Pendleton on 2 January 2003, I have been a good citizen.  I have been gainfully employed since 2 Feb.  2003.  I am currently enrolled at the University of Wisconsin-Superior to further my education in accounting.  My record of NJPs and Article 15’s, indicate only this isolated offense.  County records of court-martials and convictions by civil authorities show that I have a clean record.  This was the first time I had been UA/AWOL, and has been since I was released and discharged.  The discharge I got was severe compared to what other branches would have given for the same offense.  I would like a chance to be able to prove myself by reenlisting in the military.

Please explain to me why I was not informed that I was UA until they came and got me at work.  In addition, if you look at my charge sheet my entry date into the Marine Corps was 22 May 2001 and I graduated 14 August 2001, and then charged with UA on the 28 August 2001.  Why is it that I do not fall into the category of early separation?  I would also like my narrative reason for separation changed to entry level separation if at all possible do to the fact that I had not finished my training.

M_ W_ T_ (Applicant)
(social security number deleted)”

2.  “I have been a good citizen since discharge.”

3.  “My record of NJPs/Article 15s indicates only isolated or minor offenses.”

4.  “My record of court-martial convictions indicates only isolated or minor offenses.”

5.  “My record of convictions by civil authorities while I was in service indicates only minor or isolated offenses.”

6.  “My record of AWOL/UA indicates only minor or isolated offenses.”

7.  “The punishment I got was too severe compared with today's standards.”

8.  “The punishment I got at discharge was too harsh-it was much worse than most people got for the same offense.”

Documentation

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

Applicant’s DD Form 214
Character reference from Northland Foundation, Vice President, KIDS Plus Director, dated January 27, 2004
Character reference from BOYZ II DADZ, program coordinator, dated June 3, 2003
Record search, posted January 20, 2003
Character reference, Comfort Suites of Canal Park, Guest Service Manager, undated
Letters from the Applicant, dated June 21, 2005 and May 26, 2005
Three pages from Applicant’s service record

PART II - SUMMARY OF SERVICE

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

	Active:   USAR	20000113 - 20001121		Uncharacterized
	Inactive: USMCR(J)	20001208 - 20010521		COG

Period of Service Under Review:

Date of Enlistment:  20010522		Date of Discharge:  20031215

Length of Service (years, months, days):

	Active:    02  06  24		Does not exclude lost time
	Inactive:  None

Age at Entry:  21			Years Contracted:  4

Education Level:  12			AFQT:  81

Highest Rank:  PFC			MOS:  9971

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  2.7*			Conduct:  1.8

Military Decorations:  None

Unit/Campaign/Service Awards:  RMB, NDSM

Days of Unauthorized Absence:  443

*Extracted from BIR/BTR printout.

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:

010828:	Applicant to unauthorized absence.

021114:	Applicant from unauthorized absence, apprehended.

021116:	Applicant to confinement.

021216:	Special Court-Martial.
	Charge I:  violation of the UCMJ, Article 86:
	Specification: UA fr August 28, 2001 until apprehended on or about November 14, 2002.
Findings:  to Charge I and specification, thereunder, guilty, except for the word “unit;” substituting the words, “place of duty that he was required to be.”  To the excepted word: Not guilty; to the substituted words: Guilty; To the Specification as excepted and substituted: Guilty.
	Sentence:  Bad-conduct discharge, confinement for 75 days, forfeiture of $700.00 pay per month for three months, and reduction to Private, pay grade E-1.
	CA 030411:  Sentence approved and ordered executed, as stipulated in the pretrial agreement, except for the BCD.

030102:	Applicant from confinement.

030108:	Applicant authorized voluntary appellate leave.

030415:	Applicant’s voluntary appellate leave changed to involuntary appellate leave.

030729:	NMCCMR:  Affirmed findings and sentence.

031030:	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 20031215 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 1-8.  In response to the Applicant’s issue 1, 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 sentence awarded the Applicant at his court-martial was appropriate for the offense he committed.  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 P1900.16F), 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