Author: CAP
Last saved by: Department of the Navy
Company: NCPB

Docket No. MD00-00465

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

 ex-Pvt, USMC
Docket No. MD00-00465

Applicant’s Request

The application for discharge review, received 000229, 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 did not list any representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 000928.  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

Prior to the documentary discharge review, the applicant introduced no issues as block 8 on the DD Form 293 is blank. 

Documentation

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

Letter from Applicant
Copy of DD Form 214
Copy of DD Form 214 from USA
Post-Service Conduct Letter
Transcript from Jackson Community College
Copy of Certificate of Achievement 

PART II - SUMMARY OF SERVICE

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

	Active:   USA			731029 - 761126	HON
	Inactive: USMCR(J)		841123 – 850423	COG

Period of Service Under Review:

Date of Enlistment:  850424		Date of Discharge:  870824

Length of Service (years, months, days):

	Active:    01 08 23
	Inactive:  None

Age at Entry:  19			Years Contracted:  4 

Education Level:  12			AFQT:  64

Highest Rank:  LCpl

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  4.3 (3)			Conduct:  4.4 (3)

Military Decorations:  None

Unit/Campaign/Service Awards:  Expert Rifle Badge, NDSM, AFEM, Meritorious Mast 

Days of Unauthorized Absence:  142 

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:

850717:	NJP for violation of UCMJ, Article 91: Disrespectful in language to Sgt B___ by calling him a "pig" in Spanish.
Awarded forfeiture of $133.00 per month for 1 month.  Not appealed.

851107:	Applicant declared a deserter on 0530, 851003 and dropped from the roll

860303:	Applicant surrendered to military authorities on 860225 (1430) at I & I, Gary, IN.  Returned to military control 860225.  Transferred to SAC, ITS, MCB, CAMPEN, CA 92055-5042.

860307:	NJP for violation of UCMJ, Article 86: UA from 0530, 851003 to 1430, 860225 [142days/S].
Awarded forfeiture of $167.00 per month for 1 month.  Not appealed.

860317:	Counseled for deficiencies in performance and conduct.  Failure to comply with the UCMJ.  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

860723:	Counseled for deficiencies in performance and conduct.  You have received two NJP's.  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

860817:	To confinement, sentence of SPCM.

860828:	Special Court-Martial.
	Charge I:  violation of the UCMJ, Article 91 (2 Specifications): Disobeying a lawful order from an NCO on 860817.
	Charge II:  violation of the UCMJ, Article 117: Wrongfully use provoking gestures on 860817.
	Findings:  to Charge I and specification 1 and 2 thereunder, guilty.  To Charge II and specification thereunder, guilty.  
	Sentence:  Confinement for 90 days, forfeiture of $440.00 pay per month for 3 months, reduction to E-1, and a bad conduct discharge.
	CA 860922:  Sentence approved and ordered executed except for the BCD.

861024:	Applicant waived clemency review	

861102:	From confinement, to duty.

861103:	To appellate leave.

870306:	NMCCMR:  Affirmed findings and sentence.

870817:	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 870824 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 introduced no decisional issues for consideration by the Board.

Relevant and material facts stated in a court-martial specification are presumed by the NDRB to be established facts.  With respect to a discharge or dismissal adjudged by a court-martial case tried under the Uniform Code of Military Justice, the action of the NDRB extends only to a change in the discharge or dismissal for purpose of clemency. (B, art IV)   Unfortunately, the applicant has not provided any documentation of good character and conduct.  Relief denied.

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 91, for disobeying a lawful order.

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/A0100/A9500/A6801/A9105