Author: CAP
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Docket No. MD01-00854

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

 ex-PVT, USMC
Docket No. MD01-00854

Applicant’s Request

The application for discharge review, received 010612, 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 020118.  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/COURT-MARTIAL, authority: MARCORSEPMAN Par. 1105.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

1.  I feel the discharge was punishment for my wrongful actions.  Since discharged, I have done away with any illegal substances and have chosen a path for the better of my life and those around me.  I come in this document to ask for forgiveness of my wrongful doings.  I ask for a upgrade that is possible for the bad conduct discharge given, since my discharge, I have done what I can to better my life as a united states citizen.  Thank you for your consideration  

Documentation

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

Copies of DD Form 214 (2)

PART II - SUMMARY OF SERVICE

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

	Active:   USMC		None
	Inactive: USMCR(J)		950328 - 950918	COG

Period of Service Under Review:

Date of Enlistment:  950919		Date of Discharge:  971106

Length of Service (years, months, days):

	Active:    02  00  25
	Inactive:  None

Age at Entry:  18			Years Contracted:  4 

Education Level:  12			AFQT:  32

Highest Rank:  PFC

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  3.5 (5)			Conduct:  3.6 (5)

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM, Rifle Expert Badge 

Days of Unauthorized Absence:  None

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:

970109:	Special Court-Martial.
	Charge I:  violation of the UCMJ, Article 92: Did, on 960919, violate a lawful general regulation, to wit: SECNAVINST 5300.28B, para 6 (b), dtd 900711, by wrongfully possessing drug paraphernalia consisting of one marijuana pipe and rolling paper.
	Charge II:  violation of the UCMJ, Article 112a: (2 Specifications), Spec 1: Did, on 960919, wrongfully possess some amount of marijuana; Spec 2: Did, on 960919, wrongfully introduce some amount of marijuana onto a vessel, aircraft, vehicle, or installation used by the armed forces or under control of the armed forces, to wit: Naval Amphibious Base, Coronado, San Diego, CA.
	Findings:  to Charge I and specification 1 thereunder, guilty.  To Charge II and specifications 1 and 2 thereunder, guilty.  
	Sentence:  Confinement for 45 days, forfeiture of $600.00 pay per month for 2 months, reduction to E-1, and a bad conduct discharge.
	CA 970324:  Sentence approved and ordered executed except for the BCD, but the execution of that portion of the sentence adjudging confinement in excess of 30 days is suspended for a period of twelve months from the date of this action, at which time, unless sooner vacated, the suspended portion of the sentence will be remitted without further action.
	
970109:	To confinement, Sentence of SPCM.

970109:	Applicant waived rights to clemency review.

970202:	From confinement, to duty.

970821:	NMCCMR:  Affirmed findings and sentence.

971106:	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 971106 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).

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.  The applicant's case was considered under the pertinent standards of equity to determine if any factors in this particular case merited clemency.  The NDRB found the applicant’s service record devoid of any mitigating or extenuating factors sufficient to offset the seriousness of the offenses for which the discharge was awarded.  The applicant failed to provide documentary evidence to demonstrate his sobriety, positive community service, employment history, and clean police record since discharge.  Relief based on clemency is not warranted.

The applicant is eligible for a personal appearance hearing provided the application is received within 15 years from the date of discharge.  Representation at personal appearance hearing is recommended.

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 P1900.16E), effective 950818 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 92 and Article 112a.

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 “afls10.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/A9317/A9105/A9221