Author: CAP
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Docket No. MD02-00511

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

ex-Pvt, USMC
Docket No. MD02-00511

Applicant’s Request

The application for discharge review, received 020308, requested that the characterization of service on the discharge be changed to general/under honorable conditions or entry level separation or uncharacterized.  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/COURT-MARTIAL, authority: MARCORSEPMAN Par. 1105.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as submitted

1.  This incident occurred at the beginning of a second enlistment.  This marine committed suicidal maliciousness to his arms and wrists before going U.A.  I also requested mast to confer with my chain of command.  I was told by my First Sergeant that I could not get out of this re-enlistment contract, no matter what my circumstances were. While I was stationed at Ft. Levenwood for six months my new wife who convinced me to re-enlistee was using the opportunity to leave me.  This woman would take the family car, our newborn son and all of our belongings to a separate address of her choosing.  My new unit afforded me simply 10 days emergency leave to close out financial accounts and return back to Begin my new M.O.S. training.  I hadn't any will to live; and much less any concern for being in the Marine Corps.  Her plan would have had me separated from my son for four years while finishing my enlistment. I do not claim to have made the Best decisions But I know that I did get discharged in time to go home and build A relationship with my son that otherwise I might not even been afforded the opportunity. My Entire chain of command knew my circumstances and yet used my actions to reflect what a Marine should not be.  Yet they themselves contributed to the complications of my already difficult situation.  I have already been dismissed from three potential jobs because of my Bad Conduct discharge and have long since moved on to Build a New Family and only wish to put the past behind me.  Most people I have seen lie about their discharges to gain employment, and I want to be completely truthful.  Thank you.  Semper Fi

Documentation

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

DD Form 180
Copy of DD Form 214
Eighteen pages from Applicant's service record

PART II - SUMMARY OF SERVICE

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

	Active:   USMC		911029 - 951028	HON
	Inactive: USMCR(J)		910618 - 911028	COG

Period of Service Under Review:

Date of Enlistment:  960213		Date of Discharge:  980424

Length of Service (years, months, days):

	Active:    02  02  12
	Inactive:  None

Age at Entry:  22			Years Contracted:  4

Education Level:  12			AFQT:  68

Highest Rank:  LCpl

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  4.4 			Conduct:  3.9

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM, SSDR, SOR, MUC, Letter of Appreciation, CGMUC, CGCM, HSM

Days of Unauthorized Absence:  52

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:

970506:	Special Court-Martial.
	Charge I: violation of the UCMJ, Article 86:
	Specification 1: Unauthorized absence 0715, 1 Jul 96 to 1705, 22 Aug 96 (52 days).
	Charge II: violation of the UCMJ, Article 112a:
	Specification: Wrongfully use marijuana on 23 Aug 96.
	Findings: to Charge I and II and the specifications thereunder, guilty.
	Sentence: Bad conduct discharge.
	CA 971009: Sentence approved and ordered executed except for the BCD.

970611:	To appellate leave.

980130:	NMCCMR:  Affirmed findings and sentence.

980424:	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 980424 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.  Despite the Applicant’s family problems at the time, 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 Applicant’s discharge characterization accurately reflects his service to his country.  Normally, to permit relief, an error or inequity must have existed during the period of enlistment in question.  No such error or inequity 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, to enhance employment opportunities, or for good conduct in civilian life, subsequent to leaving the service.  Relief not warranted.

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 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 86, unauthorized absence for more than 30 days.

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.
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