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

 ex-PVT, USMC
Docket No. MD02-00524

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 personal appearance hearing discharge review before a traveling panel closest to Hawthorne, CA or Phoenix, AZ.  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 hearings are held in the Washington, D.C. 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 021121.  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.  Dear Sir or Mam.

My sincere apologies to the government of the United States of America.  In my heart I feel that I served as honorably as I could to defend this country and a military which until this day I hold dear to my heart, my first term career was going perfect I had good Pro's and Con's and I was motivated, that was until I lost my father and an uncle in a motorcycle accident. That very week my cousin not being able to bare the thought of losing her dad committed suicide at 22 years of age.  I honestly did not feel that I had anyone to turn to.  I tried the chaplain and he helped a lot but I still needed comfort from my family.  So one evening after a sorrowful moment I went home.  Sir or mam this is still the biggest mistake of my life, not only did I lose 3 beautiful people but the right to serve this great country.  I was awarded a bad conduct discharge.  Sir or mam I did not harm anyone it was not as a result of using drugs or doing anything to slander the marine corp.  It was due to a 21 year old with a broken heart.  I still have dreams of serving I'm only 28 a proud father and citizen.  Please review my records, sir or mam 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)

PART II - SUMMARY OF SERVICE

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

	Active:   USMC		None
	Inactive: USMCR(J)		911121 - 920615	COG

Period of Service Under Review:

Date of Enlistment:  920616		Date of Discharge:  950906

Length of Service (years, months, days):

	Active:    03  00  21 (Does not include lost time)
	Inactive:  None

Age at Entry:  19			Years Contracted:  4 

Education Level:  12			AFQT:  52

Highest Rank:  LCpl

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  4.5 (5)			Conduct:  3.4 (6)

Military Decorations:  None

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

Days of Unauthorized Absence:  55 

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:

940511:	Applicant declared a deserter having been an unauthorized absentee since 0630, 940411 from CSSG-1, MCAGCC, 29 Palms, CA.

940605:	Applicant apprehended by civil authorities on 940605 (1745) at Hawthorne, CA.  Returned to military control 940605 (2104).  Delivered to CO, CSSG-1, MCAGCC, 29 Palms, CA.

940607:	Confinement from 940607-940612.

940712:	Special Court-Martial.
	Charge I:  violation of the UCMJ, Article 86:
	Specification: On 940411 without authority, absent himself from his unit until apprehended on 940605 (55 days/A).
	Findings:  to Charge I and specification thereunder, guilty.
	Sentence:  Confinement for 45 days, forfeiture of $555.00 pay per month for 2 months, reduction to E-1, and a bad conduct discharge.
	CA 950117:  Sentence approved and, except for the bad conduct discharge, ordered executed, but the execution of that portion of the sentence adjudging confinement in excess of 37 days is suspended for a period of 12 months from the date of this action, at which time, unless sooner vacated, the suspended confinement will be remitted without further action.
	
950623:	NMCCMR:  Affirmed findings and sentence.

950906:	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 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).

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.   The Board also noticed that the Applicant made no reference to his deceased relatives as a basis for mitigating circumstances during his special court-martial.  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, or good conduct in civilian life, subsequent to leaving the service.  

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