Author: CAP
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Docket No. MD02-00517

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

 ex-Pvt, USMC
Docket No. MD02-00517

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.  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.  I believe my actions were an isolated incident.

2.  I believe that I served honorably aside from this isolated incident.

3.  The Judges sentence proves that I served honorably. 

4.  I would like to start out by saying that I feel confident that after reviewing all the information you have been presented with that you will come to the conclusion that not only have I lived my life with honor, but that I also served my country honorably.  Although I was a U.S. Marine, I was also a human being.  A human being who like all others makes mistakes during there lives.  I indeed made a mistake.  A mistake that cost me a career, self pride, and the right to wear the Marine uniform.  A mistake that I learned a great deal from.  I feel that there is no doubt that although I made some wrong decisions, they were an isolated incident.  An incident that occurred in a time of my life when I was experiencing personal problems, and was vulnerable.  I was going through a divorce that was very hard, and confusing.  I am not nor will I ever make excuses for the actions that I took, actions I regretted making immediately.  Although I did display bad judgment, there is no doubt that throughout my career I did serve my country and Corps honorably.  My records along with the numerous character references I have provided and the judgment passed onto me by the judge himself at the trial will prove so.  The judge himself saw something in me that caused him to make the decision to indeed give me the option to stay in the Marines.  An option I had to regrettably turn down due to the fact that I was informed that if I was to indeed take this option I would then be put up for a General Court Martial for breaking a plea bargain.  I was an asset to every unit I served with.
Upon release from Duty I have made several accomplishments.  I came to Indiana to begin a job at a third party warehouse for Kroger called CSI that my cousin had offered me.  When I came to this company two years ago, I started as an entry level order selector on the warehouse floor, and am now entering into management.  I am respected by my fellow employees and peers, and have even earned the respect of certain employees that rarely give their respect.
I have also had to establish a suitable home for myself in this new state when my cousin unexpectedly left the company and went back to Tennessee.
I have also become a father that has in itself given me even more knowledge and awareness of what it is to have responsibilities, and be responsible.  I have found myself sitting in courtrooms on a couple occasions in order to instill my rights as a father, and so my daughter will be able to visit her father and know that she has a father that is there for her and loves her.  I have always been on top of my support, and have maintained a good relationship and friendship with my daughters mother.  Along with this I have also maintained a good work relationship as we work in the same department.  I have been praised on my abilities to keep things professional.
I have volunteered for work functions, one of which included going to the company Christmas party to take pictures of the kids with Santa.  I have also been donating a portion of my check each week since I began here to the SCUFFY (Shelby County United Fund For You) which provides financial support to sixteen member agencies that provide health and human services to Shelby County, the USO being one of these agencies.
	I cannot express enough the regret I have for the decisions that I chose to make.  This ordeal was very unfortunate, but it exposed many lessons for me.  Lessons that I have learned from.  I have close friends that are still serving bravely abroad.  Many who are in Afghanistan, and during these tough times, I cannot explain how helpless I have felt not being able to be there with them to lend a hand in keeping freedom alive for our country.  I do not want my daughter to grow up afraid.  Once again all I ask is to look at my records and all my Character references I have included, and please give careful consideration to my request.  Thank you for your time.

Documentation

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

Copies of DD Form 214 (2)
Copy of Employment Reference Letter from CS Integrated
Copy of Applicant's Unsworn Statement 
Reference Letter from D_ J. S_ (2 pgs)
Reference Letter from T_ F_ (2 pgs)
Character Reference Letter from C_ L. B_
Character Reference Letter from C_ M_ (2 pgs)
Character Reference Letter from M_ J_
Character Reference Letter from L_ V_
Character Reference Letter from Mrs. L_ D_
Character Reference Letter from Mrs. R_ R_
Character Reference Letter from M_ M. V_
Character Reference Letter from Applicant's Grandfather D_ E. F_ (2 pgs)
Service Related Documents (45 pgs)   

PART II - SUMMARY OF SERVICE

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

	Active:   USMC		None
	Inactive: USMCR(J)		None

Period of Service Under Review:

Date of Enlistment:  970521		Date of Discharge:  010507

Length of Service (years, months, days):

	Active:    03  11  18
	Inactive:  None

Age at Entry:  18			Years Contracted:  4 

Education Level:  12			AFQT:  70

Highest Rank:  LCpl

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  4.1 (7)			Conduct:  4.0 (7)

Military Decorations:  None

Unit/Campaign/Service Awards:  NUC, LOA, Rifle Sharpshooter 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:

990914:	Special Court-Martial.
	Charge I:  violation of the UCMJ, Article 107: Did, at or near the Jacksonville, North Carolina area, on or about 990719, with intent to deceive, make to Naval Criminal Investigative Service Agent S. J. D_ an official statement, to wit: "this was the first time I ever knew any drugs were in my house" and "I have never seen anyone use any type of drug in my house or in my presence," which statement was totally false, and was then known by the said Lance Corporal G_ to be so false.
	Charge II:  violation of the UCMJ, Article 112a: (2 Specifications), Spec 1: Did, at or near the Jacksonville, North Carolina area, on or about 990618, wrongfully use methylenedioxy methamphetamine, a substance commonly known as "Ecstacy," a Schedule I controlled substance; Spec 2: Did, at or near the Jacksonville, North Carolina area, on or about 990628, wrongfully use lysergic acid diethylamide.
	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 $500.00 pay per month for 2 months, reduction to E-1, and a bad conduct discharge.
	CA 000121:  Sentence approved and, except for the BCD will be executed, but the execution of that part of the sentence extending to all confinement in excess of thirty (30) days is suspended for a period of one hundred twenty (120) days from the date of trial, at which time, unless sooner vacated, the suspended portion will be remitted without further action.
	
990914:	To confinement, Sentence of SPCM.

991007:	From confinement, to duty.

000122:	To appellate leave.

001130:	NMCCMR:  Affirmed findings and sentence.

010507:	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 010507 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 1-4.  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 his special court-martial, 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 112a, wrongful use of a controlled substance.

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.
INDEX:  A6800/A9235/A9307/A9221/