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Docket No. MD01-01125

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

 ex-PVT, USMC
Docket No. MD01-01125

Applicant’s Request

The application for discharge review, received 010824, requested that the characterization of service on the discharge be changed to honorable.  The applicant requested a personal appearance hearing discharge review before a traveling panel closest to Oakland, CA.  The applicant did not list any representative on the DD Form 293.  In the acknowledgement letter to the applicant, he was informed that the Naval Discharge Review Board (NDRB) does not travel, all hearing are held in the Washington, DC Area.  The Naval Discharge Review Board (NDRB) also advised that the Board first conducts a documentary review prior to any personal appearance hearing.  

Decision

A documentary discharge review was conducted in Washington, D.C. on 020417.  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.  Please see attached letter dated May 30, 2001 & June 13, 2001 to include the many signatures.

Documentation

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

Copy of DD Form 214
Letter from Applicant (2pgs)
Character Reference Letter
Page of Signatures for Character Reference Letter
Copy of Certificate of Achievement (Outstanding Achievement and Accomplishment in a Recovery Program)
Confidential Information from B____ E____, MD 

PART II - SUMMARY OF SERVICE

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

	Active:   USMC		None
	Inactive: USMCR(J)		900324 - 900520	COG

Period of Service Under Review:

Date of Enlistment:  900521		Date of Discharge:  950726

Length of Service (years, months, days):

	Active:    04  09  24
	Inactive:  None

Age at Entry:  25			Years Contracted:  6

Education Level:  11			AFQT:  53

Highest Rank:  LCpl

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  4.1 (7)			Conduct:  3.8 (7)

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM, Rifle Marksmanship Badge, LOA 

Days of Unauthorized Absence:  None 

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:

900802:	NJP for violation of UCMJ, Article 91: Willfully disobeyed SSgt W_____ order to secure her weapon to her rack; violation of UCMJ, Article 91: Willfully disobeyed Sgt D____ order to keep her weapon with her at all times.
Awarded forfeiture of $189.00 pay per month for 1 month, extra duties for 4 days.  Not appealed.

901210:	To Confinement.

901220:	Summary Court-Martial.
	Charge I:  violation of the UCMJ, Article 92: Specification: On 901009 violated BnO 1050.1T by wrongfully leaving her assigned barracks after liberty had expired.  Charge II: violation of the UCMJ, Article 117: Specification: On 901009 wrongfully used reproachful and provoking words to wit: "I can do what ever the fuck I want" and "Fuck you" and " If you don't leave me alone, I'm going knock you on your ass" and "Wait until you go to sleep, the nights not over" to LCpl N.S. C_____, USMC.  Charge III: violation of the UCMJ, Article 128: Specification: On 901009 did assault LCpl N. S. C_____ USMC at MCB, Campen.  Charge IV: violation of the UCMJ, Article 134: Specification: Drunk and disorderly on 901009.     
	Finding:  to Charge I and the specification thereunder, guilty. To Charge II and the specification thereunder, guilty.  To Charge III and the specification thereunder, guilty.  To Charge IV and the specification thereunder, guilty.
	Sentence:  Confinement for 30 days, forfeiture of $482.00 pay per month for 1 month, reduced to E-1.
	CA action 901220:  All matters submitted for clemency was considered.  Sentence approved and ordered executed, with 15 days of the 30 days confinement suspended for 6 months.  At which time unless sooner vacated, the suspended confinement will be remitted without further action.  
	
901223:	From Confinement.

910207:	Counseled for deficiencies in performance and conduct.  [Habitual misconduct.  Within a 5 months period you have been adjudicated in 2 NJP's and one Summary Court Martial.  Your charges range from willful disobedience of lawful order, UA, to assault].  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

910207:	NJP for violation of UCMJ, Article 86: UA/AWOL from 2300, 910127 to 1500, 910128, violation of UCMJ Article 86: UA/AWOL from 2301, 910203 to 0701, 910204.
	Award:  Forfeiture of $376.00 pay per month for 2 months, restriction for 30 days, extra duty for 15 days.  Not appealed.

910207:	CA Supplemental action 910207: The sentence as suspended on 901220 is vacated.  Unexecuted portion of sent to confinement for 15 days is ordered executed

910207:	To Confinement.

910215:	From Confinement.  

910913:	Applicant successfully completed Level II Treatment. 

920903:	Counseled for deficiencies in performance and conduct  [Alcohol related incidents, DWI with .08% BAC, and DWI with .15% BAC.  It is my intent to process you for separation for failure to complete Level III alcohol treatment].  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

921203:	Counseled for deficiencies in performance and conduct  [Habitual misconduct, as recent indicates by the pending charges: UA, and malingering].  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

921204:	NJP for violation of UCMJ, Article 115: Feigned a disability to avoid company march on 921104 by complaining that her back was in pain, violation of UCMJ Article 86: UA, by failing to return off leave from 0700 through 1825 on 921113.
	Award:  Forfeiture of $200.00 pay per month for 2 month, restriction and extra duty for 45 days, reduction to E-2.  Appealed 921209.  Appealed denied 930209.

930218:	Pre-Trial confinement from 930218 to 930407.
 
930408:	Special Court-Martial.
	Charge I:  violation of the UCMJ, Article 86: Specification 1: On 930125 without authority absent herself from her unit and remained so until 930126; 	Specification 2: At on or about 0700, 0800, 0900; and on or about 921213, at or about 0700 on or about 921220; at or about 0700 on or about 930105; and at or about 0700 on or about 930109 without authority, fail to go at the time prescribed to appointed place of duty. Charge II:  violation of the UCMJ, Article 112a: Specification: About 930117 and 930127 wrongfully use cocaine.
	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 $500.00 pay per month for 3 months, and a bad conduct discharge.
	CA 930408:  Sentence approved and ordered executed except for the BCD.

930611:	UA since 1300, 930611, declared a deserter as of 1300, 930711 and dropped from the rolls of orig on RUC 21500.

930929:	From UA at 1200, 930929 when apprehended by PMO Camp Lejeune.

930929:	To Confinement.

931022:	Waiver of clemency review.

931103:	Mark of desertion removed as erroneous, charges dropped and released from confinement to appellate leave.

940729:	NMCCMR:  Affirmed findings and sentence.

950727:	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 950726 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).

Issue 1. With respect to a discharge adjudged by a court-martial case, the action of the NDRB is restricted to upgrades based on clemency (C, Part IV).  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.   Relief denied.

The discharge was proper and equitable.  Normally, to permit relief, an error or injustice must have existed during the period of enlistment in question.  No such error or injustice occurred during the applicant’s enlistment.  Additionally, 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 service.  However, the NDRB is authorized to consider outstanding post-service factors in the recharacterization of a discharge, to the extent that such matters provide a basis for a more thorough understanding of the applicant’s performance and conduct during the period of service under review.  Verifiable proof of any post-service accomplishments must be provided in order for the applicant to claim post-service conduct and behavior as a reason to upgrade a less than Honorable discharge.  Evidence of continuing educational pursuits, an employment record, documentation of community service, certification of non-involvement with civil authorities and proof of her not using drugs, are examples of verifiable documents that should have been provided to receive consideration for relief, based on post-service conduct.  The applicant did not provide sufficient documentation to warrant an upgrade to her discharge.  She is reminded that she remains eligible for a personal appearance hearing, provided an application is received, at the NDRB, within 15 years from the date of her discharge.  The applicant can provide additional documentation to support any claims of post-service accomplishments at that time.  Legal representation at a personal appearance hearing is highly recommended but not required.  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 P1900.16D), 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 86, unauthorized absence; Article 92, failure to obey a lawful general order; Article 112a, wrongful use of a controlled substance; Article 117, provoking words; Article 128, assault; and Article 134, drunk and disorderly.

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	
		Washington, D.C.  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/A9105/A9221