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

Docket No. MD02-01034

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

 ex-PVT, USMC
Docket No. MD02-01034

Applicant’s Request

The application for discharge review, received 020715, requested that the characterization of service on the discharge be changed to honorable.  The Applicant requested a personal appearance hearing discharge review before the Board in the Washington National Capital Region.  The Applicant did not list any representative on the DD Form 293.  Subsequent to the application, the Applicant obtained representation by the American Legion.

Decision

A personal appearance discharge review hearing was conducted in Washington, D.C. on 030320.  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 at the time of issue.  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 court-martial (SPCM)- other, authority: MARCORSEPMAN, PAR. 1105.

. 

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as submitted

1.	Pursuant to 10 USC, section 874 (b), (UCMJ, Article 74) and in accordance with SECNAVINST 5420.174C, enclosure (1), paragraphs 2.24 and 9.3, this former member requests the Board’s clemency relief with up-grade of his characterization of service on the basis of his post-service conduct.

Documentation

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

Achievement Award dated 000509
Fulton County Court Termination of Probation letter dated 000517 (2 pages)
Copy of Account Claim Letter
Copy of Appellate Leave Orders (2 pages)
Copy of Report of Return of Absentee
Copy of DD Form 214
Letter from Applicant received 030210
Letters from Applicant received 030225 (2 pages)
Applicant's Marine Corps Picture

PART II - SUMMARY OF SERVICE

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

	Active:   USMC		None
	Inactive: USMCR(J)		870326 - 870426	COG

Period of Service Under Review:

Date of Enlistment:  870427		Date of Discharge:  890926

Length of Service (years, months, days):

	Active:    02  05  00
	Inactive:  None

Age at Entry:  19			Years Contracted:  6 

Education Level:  12			AFQT:  86

Highest Rank:  PFC

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  4.1			Conduct:  2.1 [Extracted from SSPCMO review]

Military Decorations:  None

Unit/Campaign/Service Awards:  Rifle Marksman Badge 

Days of Unauthorized Absence:  115 

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:

871023:	Applicant declared a deserter on 871022 having been an unauthorized absentee since 0500, 870922 from ScolsBn, MCAGCC, 29 Palms, CA.

880120:	Applicant surrendered to the USMC-RS, Toledo, OH on 880115 (1720) at ScolsBn, MCCES, MCAGCC, 29 Palms, CA.  Returned to military control 880115 (1720).  Retained.

880222:	Special Court-Martial.
	Charge I:  violation of the UCMJ, Article 86: Unauthorized absence from 870922 to 880115 (115 days/S).
	Findings:  to Charge I and specification 1 thereunder, guilty.
	Sentence:  CHL for 45 days, forfeiture of $250.00 for 2 months, reduction to E-1, and a bad conduct discharge.
	CA 880425:  Sentence approved and ordered executed except for the BCD.
	
880222:	To confinement, sentence of SPCM.

880330:	From confinement, to duty.

880510:	To appellate leave.

880727:	NC&PB denied clemency and restoration.

881115:	NMCCMR:  Affirmed findings and sentence.

890918:	SSPCMO:  Article 71c, UCMJ, having been complied with, bad conduct discharge ordered executed.

990302:	NDRB documentary record review Docket Number MD98-00762 conducted.  Determination:  discharge proper and equitable; relief not warranted.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 890926 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 by appellate review authority 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 factors in this particular case merited clemency.  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 NDRB is authorized to consider outstanding post-service factors in the recharacterization of a discharge, to the extent that such matters provide a basis for a more thorough understanding of the Applicant’s performance and conduct during the period of service under review.  Verifiable proof of any post-service accomplishments must be provided in order for the Applicant to claim post-service conduct and behavior as a reason to upgrade a less than Honorable discharge.  Evidence of continuing educational pursuits, employment record, documentation of community service, certification of non-involvement with civil authorities and credible evidence of a substance free lifestyle, are examples of verifiable documentation that is normally provided to receive consideration for relief, based on post-service conduct.  The Applicant’s evidence of post-service conduct was found not to mitigate the offense for which he was discharged.  The NDRB found the Applicant’s record devoid of mitigating or extenuating factors sufficient to offset the seriousness of the offense for which the discharge was awarded.   Relief denied.

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/A9221/A9105