Author: CAP
Last saved by: Department of the Navy
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Docket No. MD00-00333

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

 ex-PFC, USMC
Docket No. MD00-00333

Applicant’s Request

The application for discharge review, received 000111, requested that the characterization of service on the discharge be changed to general/under honorable conditions.  The applicant requested a documentary record discharge review.  The applicant designated the American Legion as his representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 000831.  After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, NDRB discerned no impropriety or inequity in the characterization of the applicant’s service.  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

1.  (Equity Issue)  Pursuant to 10 USC 874(b) (UCMJ Article 74) and in accordance with SECNAVINST 5420.174C, enclosure (1), paragraphs 2.24 and 9.3, this former member requests the Board's clemency relief with up-grade of his characterization of service to under honorable conditions on the basis of his post-service conduct.

Documentation

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

Copy of DD Form 214
Applicant's permission for American Legion to obtain service record dtd 11/25/99
Letter from United Brotherhood of Carpenters and Joiners of America Local Union membership dtd Nov 15, 1999
Letter from Carpenters Assistance Program, Piledrivers Local Union membership dtd Nov 18, 1999
Letter from Sacred Heart Parish dtd Nov 24, 1999
Letter from Bayview Associates "Quitting Time" rehab program (completion date 11/18/99)
Character Reference ltr from V_ R. D_ dtd Dec 5, 1999
Character Reference ltr from J_ L. L_ dtd 11/24/99
Applicant's Spouse ltr dtd Nov 28, 1999
Rehab Program "I’M YOUR DISEASE" write-up
American Legion's ltr to Applicant dtd 19 Jan 2000

PART II - SUMMARY OF SERVICE

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

	Active:    None
	Inactive:  USMCR(J)		850629 - 851202	COG

Period of Service Under Review:

Date of Enlistment:  851203		Date of Discharge:  880806

Length of Service (years, months, days):

	Active:    02  08  04 (Doesn't exclude lost time.)
	Inactive:  None

Age at Entry:  18			Years Contracted:  4 

Education Level:  12			AFQT:  38

Highest Rank:  Pvt

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  4.06 (5)		Conduct:  3.64 (5)

Military Decorations:  None

Unit/Campaign/Service Awards:  None 

Days of Unauthorized Absence:  378 (includes confinement and appellate leave)

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

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

Chronological Listing of Significant Service Events:

860506:	NJP for violation of UCMJ, Article 86:  failed to go at the time prescribed to his appointed place of duty, without authority, Bks M-507B, 0200, 860421, FSSCo, MCSSS, MCB, Camp Lejuene for fire security watch; violation of UCMJ Article 92:  having knowledge of a lawful order issued by CO, MCSSS, par 7d(2), ScolsO 1050.1N dtd 840926, violated same on 860420, by failing to check out on liberty.
	Award:  Forfeiture of $200 per month for 2 months, restriction for 14 days.  Not appealed.

860506:	Counseled for deficiencies in performance and conduct [NJP of 860506]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

860822:	NJP for violation of UCMJ, Article 92:  having knowledge of a lawful order issued by the Commanding Officer, CSSD-18, not to go on off base liberty unless authorized, did on onboard Camp Wilson, 29 Palms, CA on or about 0214, 860815, fail to obey the same; violation of UCMJ, Article 86:  on or about 0214, 860815, without authority, absent himself from his place of duty, to wit: Camp Wilson, 29 Palms, CA, and did remain so absent until on or about 1800, 860819; violation of UCMJ, Article 134:  on or about 0214, 860815, drunk, which conduct was of a nature to bring discredit upon the Armed Forces.
	Award:  Forfeiture of $358 per month for 1 month (suspended for 6 months), restriction and extra duty for 30 days.  Not appealed.

860827:	Vacated the suspended portion of the sentence awarded on 860822.

870128:	Summary Court-Martial.
	Charge I:  violation of the UCMJ, Article 128.
	Specification: on or about 860826, assault Cpl R_, USMC, by swinging at him with his fists.
	Charge II:  violation of the UCMJ, Article 134 (2 Specifications).
	Specification 1:  on or about 860826, drunk and disorderly, which conduct was of a nature to bring discredit upon the armed forces of the United States.
	Specification 2:  on or about 860826, wrongfully communicate to Sgt J.R. R_ a threat to kick him in the back of the head.
	Add Charge I: violation of the UCMJ, Article 117.
	Specification:  on or about 861011, wrongfully use provoking words, to wit:  "If you don't get out of my room, I'm going to kick your ass." And "Get out or get f----ed up", or words to that effect, towards PFC R.G. W_, USMC.
	Add Charge II: violation of the UCMJ, Article 128.
	Specification: on or about 861011, unlawfully strike PFC R.G. W_, USMC, by pushing the said PFC R.G. W_ on the body with his hands.
	Add Charge III: violation of the UCMJ, Article 134 (2 Specifications)
	Specification 1:  on or about 861011, drunk and disorderly
	Specification 2:  on or about 861014, operate a vehicle at 70 miles per hour in a 55 miles per hour zone in violation of California Vehicle Code S22348 as assimilated by 18 U.S.C. 13, the Federal Assimilative Crimes Act
	Finding:  to Charge I and the specification thereunder, guilty except the words "by swinging at him with his fists" substituting therefore "offering to do bodily harm using menacing gestures".
	To Charge II, Spec 1, guilty except the word "drunk".
	To Charge II, Spec 2, guilty.
	To add Charge I and the specification thereunder, not guilty.
	To add Charge II and the specification thereunder, not guilty.
	To add Charge III, Spec 1, guilty.
	To add Charge III, Spec 2, guilty.
	Sentence:  Confinement for 1 month, forfeiture of $219 pay per month for 1 month, reduced to E-1.
	CA action 870204:  Sentence approved and ordered executed .

870128:	To confinement.

870228:	From confinement to duty.

870515:	To pre-trial confinement.

870709:	Special Court-Martial.
	Charge I: violation of the UCMJ, Article 91: 
Specification: willfully disobey a lawful order from Sgt A. V_, USMC, on 15May 87
	Charge II: violation of the UCMJ, Article 128.
	Specification: unlawfully strike LCpl M.E. C_, USMC, ON 15May 87
	Charge III: violation of the UCMJ, Article 134.
	Specification:  drunk and disorderly on 15May87.
	Findings:  
To Charge I and specification thereunder, guilty. 
To Charge II and specification thereunder, guilty.  
To Charge III and specification thereunder, guilty
	Sentence:  Confinement for four months, forfeiture of $438.00 pay per mouth for four months, and a bad conduct discharge.
	CA 871020:  Sentence approved and ordered executed except for the BCD.
	
870709:	To confinement, Sentence of SPCM.

870727:	From confinement, to duty.

870807:	Requested clemency.

871106:	To appellate leave.

880105:	NC&PB denied clemency and restoration.

880317:	NMCCMR:  Affirmed findings and sentence.

880701:	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 880806 with a bad conduct discharge which was the sentence adjudged by a properly constituted special court martial that was determined to be legal and proper, affirmed in the legal chain of review and executed (A and B).  The Board presumed regularity in the conduct of governmental affairs (C).  After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, the Board found that the discharge was proper and equitable (D and E).

The applicant's issue states:  "(Equity Issue) Pursuant to 10 USC 874(b) (UCMJ) Article 74) and in accordance with SECNAVINST 5420.174c, enclosure (1), paragraphs 2.24 and 9.3, this former member requests the Board's clemency relief with up-grade of his characterization of service to under honorable conditions on the basis of his post-service conduct."  The NDRB did not find the applicant's post service documentation enough to warrant clemency relief of the Bad Conduct Discharge.  Relief is not warranted.

The applicant is highly encouraged to make a personal appearance before the NDRB.  Documentation of the applicant's post service conduct including sobriety, police records, and community service are of particular interest to the NDRB.  Representation at the personal appearance hearing is encouraged. 

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 P1900.16C), effective 821001 until 890626. 

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 128, assaults on noncommissioned officer, Article 134, drunk and disorderly, etc.

C.  Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 2, AUTHORITY/POLICY FOR DEPARTMENTAL DISCHARGE REVIEW.  

D.  Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 9, paragraph 9.2, PROPRIETY OF THE DISCHARGE.

E.  Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 9, paragraph 9.3, EQUITY OF THE DISCHARGE.

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 “afls14.jag.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:

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

The remaining portion of this document is divided into 4 Parts: Part I - Applicant’s Issues and Documentation, Part II - Summary of Service, Part III – Rationale for Decision and Pertinent Regulation/Law, Part IV - Information for the Applicant.
INDEX:  A6800/A9221/A9105/A0145