Author: CAP
Last saved by: Department of the Navy
Company: NCPB

Docket No. MD02-00525

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

 ex-PVT, USMC
Docket No. MD02-00525

Applicant’s Request

The application for discharge review, received 020305, requested that the characterization of service and reason for discharge be changed.  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 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 and narrative reason 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.  This writing is in regards to a request of an upgrade of my discharge from the U.S. Marine Corps.  My reasons for requesting this upgrade are as followed:  At the time of my Court-Martial, I T_ L_ V_ wasn't given the opportunity to be heard or given a chance to remain in the service.  For the reason I went U.A I wasn't question.  I was just handed a sentence and I accepted thinking that was the right thing.  I was young then.  But now I'm older in years and experience.  I have a greater sense of Respect and Honor for my Country and God.  There's a lot I can still do for my Country, including serving in the U.S. Military once more, if I'm called to arms.  At the time of my discharge I was appointed a counselor who I met at the day and time of dismissal.  I was young with no one to advise me of my options.   So now on this present date I T_ L_ V_ called on the Review Board to hear me before I'm judge and sentence.  Desertion was far from my mine on the day I left my unit.  I thought I was in Love and made the biggest mistake in a young soldier's life.  If given a chance I would have returned to my unit and accepted whatever punishment.  I could never accept being a deserter.  For I'm not.  I made it through the toughest Boot Camp in the World.  I'm just sorry I waited so long to realize I'm special for one being a Marine, and still are in heart.  I call upon the Board too, don't hold my actions as a young man against me.  For in God we all hold our trust.  I walked out for childish reasons and now I ask for a chance to walk back in.  Even if it's in spirit.  My fate is in your hand.

Documentation

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

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)		891006 - 900312	COG

Period of Service Under Review:

Date of Enlistment:  900313		Date of Discharge:  930913

Length of Service (years, months, days):

	Active:    00  09  23
	Inactive:  None

Age at Entry:  19			Years Contracted:  4 

Education Level:  12			AFQT:  40

Highest Rank:  PFC

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  4.5 (3)			Conduct:  4.5 (3)

Military Decorations:  None

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

Days of Unauthorized Absence:  495 

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:

910105:	Applicant declared a deserter.

920515:	Applicant apprehended by civil authorities on 920515 (1015) at Bronx, NY.

920516:	To confinement.

920617:	Special Court-Martial.
	Charge I:  violation of the UCMJ, Article 85: Specification 1: Did on or about 910107, without authority and with intent to remain away therefrom permanently, absent himself from his unit, to wit: Marine Corps Security Force Company, Naval Weapons Station, located at Concord, California, and did remain so absent in desertion until he was apprehended on or about 920515.
	Findings:  to Charge I and specification thereunder, not guilty of Article 85, but guilty of violation of Article 86, UCMJ.  Guilty, except for the words, "and with intent to remain away therefrom permanently" and "in desertion."  Of the excepted words, not guilty.  Of the specification as excepted, guilty.
	Sentence:  Confinement for 60 days, forfeiture of $300.00 pay per month for 3 months, reduction to E-1, and a bad conduct discharge.
	CA 920824:  Sentence approved and ordered executed except for the BCD.
	
920706:	Applicant waived clemency review.

930225:	NMCCMR:  Affirmed findings and sentence.

930803:	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 930913 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 narrative reason of separation as a result of a court-martial most clearly describes the circumstances surrounding the Applicant’s processing for administrative separation.  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 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 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 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.
INDEX:  A6800/A0224/A9229/A9105/A9217/A9221