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

 ex-PVT, USMC
Docket No. MD05-00307

Applicant’s Request

The application for discharge review was received on 20041130.  The Applicant requests the characterization of service received at the time of discharge be changed to general/under honorable conditions.  The Applicant requests a personal appearance hearing discharge review before the Board in the Washington National Capital Region.  The Applicant listed American Legion as his representative on the DD Form 293.  In the acknowledgement letter, the Applicant was informed that 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 20050428.  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/As a result of a courts-martial (SPCM) – Other, authority: MARCORSEPMAN Par. 1105.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

1. “A.  In deciding sentence, the courts-martial board did not consider or give sufficient weight to my more than eleven years of otherwise honorable service.”

2. “B.  In deciding sentence, they did not consider or give sufficient weight to the fact that I was a recovering alcoholic and drug addict who had relapsed shortly before indulging in the behavior that led to the charges.”

3. “C.  In deciding sentence, they did not consider or give sufficient weight to awards I’d earned which included two good conduct medals, a Certificate of Commendation from Commanding General 3rd Marine Aircraft Wing and Navy Achievement Medal.”

4. “D.  In deciding sentence, they did not consider the breakup of my home which, At least in part, precipitated my relapse.”

5. “E.  In deciding sentence, they did not consider the circumstances of my injury, and the findings of the Medical Review Board findings.”

6. “F.  In deciding sentence, they did not consider my cooperative efforts on behalf of the U.S. Naval Investigative Service.”        

Additional issues submitted by Applicant’s representative (AMERICAN LEGION):

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

8.  "In accordance with Title 32, CFR, section 724.116 and SECNAVINST 5420.174D, Part I, Paragraph 1.20, 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. 

The Board’s attention is invited to Blocks 12 and 18 of DD Form 214.  This Applicant reenlisted on 890120.  Per MARCORSEPMAN, Block 18 should include Continuous Honorable Active Service from 851220 until 890119 and appropriate corrections made to Block 12.

Review of the service record reveals that this former member had 2 previous honorable discharges and earned the RSB, SSDR w/star, NUC w/star, NDSR, NAM, MUC, GCM w/star, KLM, SASM w/3stars, MM (2) and COA.  He was convicted by SPCM on 920803 of VUCMJ, Articles 112a (4 specs).  Following approval by the convening authority and affirmation by the USNMCMR, he was separated with a Bad Conduct Discharge as a result of court martial as authorized by MARCORSEPMAN, Paragraph 1005.

Essentially, as noted on DD Form 293, this Applicant is requesting that his discharge be upgraded because there were several extenuating factors that contributed to and partly mitigated his misconduct which he has outlined in detail in his statement.  He has submitted 30 pages of additional documentation in support of his statement to include 3 reference letters attesting to his good post-service character and clean and sober life style 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:

Memorandum (3 pages)
Supporting Documents Listing
Honorable Discharge Certificate dated December 19, 1985
Honorable Discharge Certificate dated January 20, 1989
Promotion Order to Sergeant dated January 1, 1987
Discharge Narrative Summary (Alcohol Rehab) dated October 20, 1989 (3 pages)
Certificate of Good Conduct (2nd award) dated September 18, 1989
Meritorious Mast Certificate dated February 1, 1990
Meritorious Mast Certificate dated July 15, 1987
Memorandum from MSGT W___ 
Letter from Dept of Navy, Naval Hospital Review Board dated March 25, 1992
Letter from Dept of Veterans Affairs dated June 21, 1995
Letter from J__ M. C___ (AA Sponsor) dated May 15, 2004
Letter from E.G. L___, ESQ dated May 26, 2004
Letter from W__ S___ dated May 24, 2004
Combat Fitness Report dated February 28, 1991
Letter from J___ C. T___ dated April 2004
DD Form 214 dated December 19, 1985
DD Form 214 dated October 14, 1994
Criminal Background Investigation Report dated July 31, 2004 (5 pages) 

PART II - SUMMARY OF SERVICE

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

	Active:   USMC		820429 - 851219	HON
	Active:	   USMC		851220 - 890120	HON
Inactive: USMCR(J)		820427 - 820428	COG

Period of Service Under Review:

Date of Enlistment:  890121		Date of Discharge:  941014

Length of Service (years, months, days):

	Active:    04  08  23
	Inactive:  None

Age at Entry:  25			Years Contracted:  5

Education Level:  12			AFQT:  70

Highest Rank:  SGT			MOS:  5711

Final Enlisted Performance Evaluation Averages (number of marks): The enlisted fitness reports were available for the Board to review.

Military Decorations:  None

Unit/Campaign/Service Awards:  RSB, SSDR(w1*), NUC(w1*), NDSM, NAM, MUC, GCM(w1*), KLM, SASM(w3*), MM(2), COA, 

Days of Unauthorized Absence:  None 

Character, Narrative Reason, and Authority of Discharge (at time of issuance):

BAD CONDUCT DISCHARGE/As a result of a court-martial (SPCM) - other, authority:  MARCORSEPMAN Par. 1105.

Chronological Listing of Significant Service Events:

890121:	Reenlisted at HQ MAG-16, 3d MAW, MCAS Tustin, CA for 5 years.

890906:	Applicant admitted to Alcohol Rehabilitation Department (ARD), Naval Hospital, Camp Pendleton, CA after referral by command.

891020:	Applicant discharged from ARD to full duty.

920304:	Counseled for deficiencies in performance and conduct.  [His knowledge of BO 1710.27E and failing to enforce the contents of such orders.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
	
920803:	Special Court-Martial.
	Charge I:  violation of the UCMJ, Article 112a (7 Specifications):
	Specification 1: Did at Jacksonville, NC, between on or about 17 Dec 91 and about 31 Dec 91, wrongfully use marijuana; Specification 2: Did at Jacksonville, NC, on divers occasions during Jan 92, wrongfully use marijuana; Specification 3: Did at Jacksonville, NC, on or about 8 Feb 92, wrongfully use marijuana; Specification 4: Did at Jacksonville, NC, on or about 29 Feb 92, wrongfully distribute marijuana; Specification 5: Did at Jacksonville, NC, between about 29 Feb 92 and about 7 Mar 92, wrongfully use LSD; Specification 6: Did at Jacksonville, NC, between about 7 Mar 92 and 14 Mar 92, wrongfully distribute LSD;  Specification 7: Did at Jacksonville, NC, between about 15 Mar 92 and about 30 Mar 92, wrongfully use marijuana.
	Findings:  to Charge I:  specifications 1, 5, and 6, not guilty; specifications 2, 3, 4, and 7, guilty.
	Sentence:  Forfeiture of $100.00 pay per month for 3 months, 3 months confinement, reduction to pay grade E-1, and a bad conduct discharge.
	CA 930211:  Only so much of the sentence as provides for a bad conduct discharge, 60 days confinement, forfeiture of $100.00 pay per month for 3 months, and reduction to pay grade E-1 is approved and, except for the bad conduct discharge, will be executed.
	
920803:	To confinement, Sentence of SPCM.

920921:	From confinement, to duty.

940421:	Naval Clemency and Parole Board completes review of Applicant's case.  No clemency granted.

940713:	To appellate leave.

940726:	NMCCMR:  Affirmed findings and sentence.

941014:	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 19941014 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 through 6:  In response to the Applicant’s issues regarding the special court-martial not considering aspects of his professional and personal life in adjudging the discharge, the Applicant must understand that the actions of the NDRB in such cases are restricted to upgrades based on clemency.  Clemency is an act of leniency that reduces the severity of the punishment imposed.  The NDRB presumes relevant and material details stated in the court-martial specifications to be established facts but will thoroughly review an Applicant’s record and issues submitted to determine if clemency is warranted.  After review of the Applicant's records, 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.

Issue 7:  There is no law or regulation which provides that an unfavorable discharge may be upgraded, based solely on the passage of time or good conduct in civilian life subsequent to leaving the Marine Corps.  The NDRB is authorized to consider post-service factors in the recharacterization of a discharge 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.  Examples of documentation that should be provided to the Board include proof of educational pursuits, verifiable employment records, documentation of community service, credible evidence of a substance free lifestyle and certification of non-involvement with civil authorities.  At this time, the Applicant has not provided sufficient documentation for the Board to consider so, relief on this basis is denied.

Issue 8:  The Applicant, through his representative, contends that his problems in the Marine Corps are mitigated by his alcohol and drug addiction and the breakup of his home.  While he may feel these factors were the underlying cause of his misconduct, the record clearly reflects his willful misconduct and demonstrated he was unfit for further service.  The evidence of record did not show that the Applicant was either not responsible for his conduct or that he should not be held accountable for his actions.

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.  The Applicant can provide additional documentation to support claims of post-service accomplishments or any other evidence related to his discharge at that time.  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 COURTS-MARTIAL, of the Marine Corps Separation and Retirement Manual, (MCO P1900.16D), effective 27 Jun 89 until 17 Aug 95.

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 wrongful use, possession, etc. of controlled substances.

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