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

 ex-PVT, USMC
Docket No. MD02-00474

Applicant’s Request

The application for discharge review, received 020226, requested that the characterization of service on the discharge be changed to honorable.  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 021115.  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, as submitted

1.  On July 12, 1988 in a special court martial I pled guilty to "Article 86 unauthorized absence" and Article 87 missing a ship movement".  Under the advice of counsel I made this plea with the understanding I would receive a bad conduct discharge with the option of upgrade or review at a later date.  I was not advised by counsel or by "certified mail" (see attached) that I had a certain amount of time to appeal the courts decision.  The court made their final decision on March 7, 1989. I never received any certified mail containing the paper work for my appeal process… and would have appealed the decision "immediately"…. I would now ask the board for a review or for at least to consider the fact I was not contacted formally or their decision…is there a possibility you or my S.R.B. has notification of the certified letter.  If so, can I get paper work to file for an appeal?  Can I still appeal the courts?

Documentation

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

Copies of Supplementary Action and Special Court Martial Order (2)
Letter from Applicant (2 pages)
Copy of Request for Voluntary Appellate Leave
Copy of Appellate Leave Order
Copy of Record of Conviction by Court Martial
Copy of DD Form 214 

PART II - SUMMARY OF SERVICE

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

	Active:   USMC		None
	Inactive: USMCR(J)		850530 - 851014	COG

Period of Service Under Review:

Date of Enlistment:  851015		Date of Discharge:  901107

Length of Service (years, months, days):

	Active:    05  00  24  (Lost time included)
	Inactive:  None

Age at Entry:  23			Years Contracted:  4 

Education Level:  12			AFQT:  60

Highest Rank:  LCpl

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  4.0 (6)			Conduct:  4.0 (6)

Military Decorations:  None

Unit/Campaign/Service Awards:  Sharpshooter Rifle Badge, GCM 

Days of Unauthorized Absence:  16 

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:

860618:	NJP for violation of UCMJ, Article 111: Did at CamPen, 0255, 860523, drive while drunk.
	Award:  Reduction to E-1 (suspended for 3 months).  Not appealed.

861125:	Counseled for deficiencies in performance and conduct.  [Frequent involvement with military authorities; frequent violations of the UCMJ; and frequent disobedience of lawful orders.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

880712:	Special Court-Martial.
	Charge I:  violation of the UCMJ, Article 86:
	Specification: UA from unit 880405 until 880421 (16 days/A).
	Charge II:  violation of the UCMJ, Article 87.
	Specification: Through design miss movement on 880413.
	Findings:  to Charge I and specification thereunder, guilty.  To Charge II and specification thereunder, guilty.  
	Sentence:  CHL for 60 days, forfeiture of $447.00 pay per month for 2 months, reduction to E-1, and a bad conduct discharge.
	CA 870712:  Sentence approved and ordered executed except for the bad conduct discharge, but the execution of that portion of the sentence thereof adjudging confinement in excess of 45 days is hereby suspended for a period of six months from the date of trial, at which time, unless sooner vacated, the suspended confinement will be remitted without further action.

880712:	To confinement, sentence of SPCM.

880804:	From confinement, to duty.

880816:	To appellate leave.

890117:	NC&PB denied clemency and restoration.

890307:	NMCCMR:  Affirmed findings and sentence.

890818:	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 901107 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 Board found nothing in the documentation available for review to support the Applicant’s allegation that he was unfairly denied an opportunity to appeal his court-martial.  The Applicant’s case was reviewed by the U.S. Navy-Marine Corps Court of Military Review which affirmed both the sentence and findings of the special court-martial.  The Applicant has the right to petition the Board for Correction of Naval Records, 2 Navy Annex, Washington, D.C.  20370-5100 to review perceived injustices regarding his military record.  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.

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 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.  Representation at a personal appearance hearing is recommended but not required.  

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 87, missing ship’s movement.

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