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

 ex-PVT, USMC
Docket No. MD02-00178

Applicant’s Request

The application for discharge review, received 011211, requested that the characterization of service on the discharge be changed to honorable.  The applicant requested a documentary record discharge review.  The applicant listed Civilian Counsel as his representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 020731.  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, as submitted

1.  I am requesting an upgrade of my bad conduct discharge as a matter of clemency.  It is an injustice for me to continue to suffer the adverse consequences of a bad conduct discharge.  I was adequately punished for my court-martial offenses by having to serve confinement for four months (minus good time credit) and reduction to E-1, moreover, I will permanently carry the stigma of a court martial conviction and the shame of knowing that I threw away my childhood dream of a career in the Marines.  I had a clean military record with high pro/con marks.  Since leaving the Marine Corps, I have been an honorable member of society, have maintained a clean record, have been employed at the same company since 1996, and am active in church and civic activities.  Please see my Attorney's Brief.

2. (Issues from Attorney's Brief): Applicant warrants an upgrade to his discharge for the following reasons:  
    While on active duty, he had a clean record, good pro/con marks, had received a Good Conduct Medal, and was just over two months shy of the end of his enlistment at the time he was court-martialed.  During pre-sentencing, Applicant's squad leader and section leader from August 1991 to February 1993 testified that applicant was an "outstanding Marine" WHO “always displayed a good attitude, a lot of initiative" and “was a real hard worker."  He described Applicant as "one of the best team leaders" he'd ever had and that he would still make an "outstanding NCO in the Marine Corps".  Record of trial, United States v. B_, at 37-38.  Applicant's platoon sergeant testified that Applicant was one of the stronger Marines in his platoon and was a very good sentry who “did his job well".  Record of trial, United States v. B_, at 41.  
    His offense was due to poor judgement brought on by the stress of financial problems in a new marriage with an unexpected baby.  Applicant's wife, S_B_, testified at her husband's court-martial that she had been unable to work because she was caring for N_, her one year old son by applicant, and for C_, a three year old from a previous marriage.  Record of trial, United States v. B_, at 42. 
    He will forever carry the stigma of a court-martial conviction; that, combined with his sentence to confinement and reduction, is adequate punishment for his offenses without the necessity of a bad conduct discharge.  
    He has maintained a clean civilian record.  
    He has worked for the same employer for five years, earning their trust and respect to the point that he is in charge of job crews.  
    He has a stable home life and is respected by his family for his character and all he does for them and neighbors in time of need; indeed, his young niece writes of an incident recently where he stopped to help a stranger stranded by high water.  
    He is a committed parent who is active in his church and in school affairs. 
    He is unquestionably remorseful for his actions and still mourns the loss of his Marine Corps career.  Moreover, with the exception of the events in question, he is still proud of his Marine Corps service and encouraged his cousin to enlist in the Corps as well. 
    In sum, and for the aforementioned reasons, it would be an injustice to force Mr. B_ to continue to suffer the adverse consequences of a bad conduct discharge.  He is a responsible member of society who constantly practices service to others.

Documentation

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

Copy of Attorney's Brief (5pgs)
Letter from Applicant dtd October 16, 2001 (3pgs)
Copy of DD Form 214
Copy of Certificate of Good Conduct dtd July 1, 1993
Copy of Meritorious Mast dtd March 1, 1993
Copy of Meritorious Mast dtd May 1, 1993
Copy of Record of Service dtd February 15, 1994
Letter from A_ P. P_ dtd August 23, 2001 (2pgs)
Letter from Applicant's wife dtd October 16, 2001 (2pgs)
Letter from Applicant's sister dtd August 10, 2001 (3pgs)
Employment Reference Letter from CNB Flooring System, Inc, dtd August 9, 2001
Employment Reference Letter from Office Manager T_ B_ of CNB Flooring System, Inc, dtd August 10, 2001
Letter from Applicant's brother dtd August 5, 2001 (2pgs)
Letter from Applicant's niece dtd October 31, 2001
Letter from Applicant's sister dtd August 5, 2001
Letter from Applicant's father dtd November 1, 2001 (2pgs)
Excerpts from Record of Trial (10pgs)     

PART II - SUMMARY OF SERVICE

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

	Active:   USMC		None
	Inactive: USMCR(J)		890724 - 900701	COG

Period of Service Under Review:

Date of Enlistment:  900702		Date of Discharge:  950906

Length of Service (years, months, days):

	Active:    04  10  27
	Inactive:  None

Age at Entry:  18			Years Contracted:  4 

Education Level:  12			AFQT:  62

Highest Rank:  LCpl

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  4.5 (9)			Conduct:  4.5 (9)

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM, Rifle Sharpshooter Badge, GCM, Meritorious Mast (2), Certificate of Commendation 

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:

911231:	Counseled for deficiencies in performance and conduct [Improper Entry Control Procedures].  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

940426:	Special Court-Martial.
	Charge I:  violation of the UCMJ, Article 108: Sale of government property.
	Charge II:  violation of the UCMJ, Article 121: (2 Specifications), Spec 1: Larceny; Spec 2: Larceny of military property.  Charge III: violation of the UCMJ, Article 129: Burglary.  Charge IV: violation of the UCMJ, Article 134: Unlawful entry. 
	Findings:  to Charge I and specification thereunder, guilty.  To Charge II and specifications 1 and 2 thereunder, guilty.  To Charge III and specification thereunder, not guilty.  To Charge IV and specification thereunder, not guilty.
	Sentence:  Confinement for 4 months, reduction to E-1, and a bad conduct discharge.
	CA 940812:  Sentence approved and ordered executed.

940426:	To confinement, Sentence of SPCM.

940804:	From confinement, to duty.

941018:	To appellate leave.

950512:	NMCCMR:  Affirmed findings and sentence.

950821:	COMA:  Petition for review withdrawn.

950906:	SSPCMO:  Article 71c, UCMJ, having been complied with, Bad Conduct discharge will be executed.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 950906 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).

Issues 1 and 2.  In response to the applicant’s issues, 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 (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, to include the record of trial, devoid of any mitigating or extenuating factors sufficient to offset the seriousness of the offenses for which the discharge was awarded.   There is no injustice or inequity in the fact the applicant was sentenced to confinement, reduction in rank and involuntary separation with a bad conduct discharge as a result of his special court martial.  Relief denied.

The applicant’s discharge characterization accurately reflects his service to his country.  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 his 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 his discharge.  Relief denied.

The applicant is reminded that he remains eligible for a personal appearance hearing, provided an application is received, at the NDRB, within 15 years from the date of his 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

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 108, sale of government property; and Article 121, larceny.

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