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Docket No. MD03-00596

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

ex-Pvt, USMC
Docket No. MD03-00596

Applicant’s Request

The application for discharge review was received on 20030221.  The Applicant requests the characterization of service received at the time of discharge be changed to general/under honorable conditions.  The Applicant requests 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 20040114.  After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, no impropriety or inequity in the characterization of the Applicant’s service was discovered by the NDRB.  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 courts-martial (SPCM) – Other, authority: MARCORSEPMAN Par. 1105.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

“At the time of my discharge I was young and naïve and I made a terrible mistake.  I was charged with a minor drug issue.  I was offered a drug treatment program at the time, however I refused thinking it would be a good way to get out of my enlistment.  It was the worst decision I ever made.  I have always regretted leaving the Corps the way I did.  I have since matured and have completed a drug diversion program with the Safety Center, Inc.  I would like to upgrade my Character of Service as well as my Re-enlistment code for the following reasons:

1.  Since I left the military I have built a successful Real Estate Business and passed the State of California background check.  However, I would like to explore the possibility of a law enforcement career and to do so I need to up-grade my discharge.

2.  Mistakes or not, I am a soldier.  We may be entering an uncertain time regarding our nations military requirements.  My father is still active army and is assigned to the 341^st MP company.  He is leaving shortly for an unknown location and he was in Bosnia last year.  The point is, I want to be able to re-enlist in case my country needs me.  I would like to somehow make good on what I started and make reparations for my error.  Thank you.”

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

Applicant’s DD Form 214
Real Estate license, issued October 22, 2001
Verification of completion from Safety Center, Inc, dated August 1, 2002
Memorandum for record, dated March 11, 2003
Letter of Commendation, dated May 28, 1998
Character reference, dated March 12, 2003

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: USMCR(J)		920108 - 920920	COG

Period of Service Under Review:

Date of Enlistment:  920921		Date of Discharge:  950210

Length of Service (years, months, days):

	Active:    02  04  20	Does not exclude lost time
	Inactive:  None

Age at Entry:  18			Years Contracted:  4

Education Level:  12			AFQT:  68

Highest Rank:  PFC

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  3.8 (3)			Conduct:  3.8 (3)

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM

Days of Unauthorized Absence:  23

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:

930823:	Counseled for deficiencies in performance and conduct.  [Disrespectful speech and deportment towards SNCOs.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

931104:	NJP for violation of UCMJ, Article 91:
Specification: Disrespectful in language and deportment toward Staff Sergeant F_ on 930822, to wit: by saying “I’ll tell you what SSgt, I’m not going to take this fucking bullshit.”
Violation of UCMJ, Article 92:
Specification: Violate CCO 1720.1D on 930822, to wit: drinking under the legal age.
Violation of UCMJ, Article 118:
Specification: Use provoking words and gestures on 930822, to wit: repeatedly yelling obscenities.
Violation of UCMJ, Article 134:
Specification: Drunk and disorderly on 930822.
Awarded forfeiture of $407.00 per month for 1 month, restriction for 30 days, reduction to Pvt.  Forfeiture suspended for 3 months.  Not appealed.

931126:	Counseled for deficiencies in performance and conduct.  [Alcohol-related status.  Specifically for having been diagnosed as alcohol dependent and having been provided the opportunity to attend a program of rehabilitation for dependence.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

931203:	Vacate suspended forfeiture awarded at Commanding Officer’s NJP dated 941104.

931210:	NJP for violation of UCMJ, Article 112A:
Specification: Wrongfully use a controlled substance containing THC on 931104, to wit: marijuana.
Awarded forfeiture of $407.00 per month for 2 months, extra duties for 45 days.  Forfeiture of $407.00 for 1 month suspended for 6 months.  Not appealed.

940110:	Applicant to unauthorized absence 0630, 940110.

940203:	Applicant from unauthorized absence 1045, 940203 (23 days/surrendered).

940209:	Vacate suspended forfeiture awarded at Commanding Officer’s NJP dated 931210.

940323:	Special Court-Martial.
	Charge I: violation of the UCMJ, Article 86:
	Specification: On or about 0630, 940110, without authority, absent himself from his organization, until on or about 940203 (23 days/surrendered).
	Charge II:  violation of the UCMJ, Article 91 (3 specs).
Specification 1: On or about 940218, was disrespectful in language toward Staff Sergeant R_ L_ B_, USMC by saying to him “Fuck you, fuck this shit, fuck all of you, you son-of-a-bitch,” or words to that effect.
Specification 2: On or about 940218, having received a lawful order from Staff Sergeant B_ V_ S_, USMC to “remain in the duty noncommissioned officer’s hut, located on the third deck of Building 1664,” did willfully disobey the same.
Specification 3: On or about 940218, having received a lawful order from Staff Sergeant B_ V_ S_, USMC to “return to the duty noncommissioned officer’s hut, located on the third deck of Building 1664,” did willfully disobey the same.
Charge III. Article 112A (5 specs):
Specification 1: Between about 931013 and 931026, wrongfully use marijuana.
Specification 2: Between about 931130 and 931213, wrongfully use marijuana.
Specification 3: Between about 931206 and 931213, wrongfully use methamphetamine.
Specification 4: Between about 931222 and 940104, wrongfully use marijuana.
Specification 5: On or about 940218, wrongfully possess one marijuana cigarette containing some amount of marijuana.
	Findings: to Charge I and specification, Charge II and specifications 1 and 2, and Charge III and specifications 1-5, thereunder, guilty.  Charge II, specification 3: Withdrawn.
	Sentence: Forfeiture of $555.00 for 4 months, confinement for 100 days, and a bad conduct discharge.
	CA 940706:  Sentence approved and ordered executed except for the BCD, but the execution of that portion of the sentence extending to confinement in excess of 75 days is suspended for a period of 12 months from the date of this action, at which time, unless the suspension is sooner vacated, the suspended part of the sentence will be remitted without further action.

940802:	Applicant to appellate leave.

941014:	NMCCMR:  Affirmed findings and sentence.

950210:	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 19950210 with a bad conduct discharge which was the sentence adjudged by a properly convened special court-martial.  That sentence was subsequently approved by both the convening and appellate review authorities (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 and 2.  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 and documentation provided by the Applicant absent of any mitigating or extenuating factors sufficient to offset the seriousness of the offenses for which the discharge was awarded.  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 NDRB has no authority to change reenlistment codes or make recommendations to permit reenlistment, reentry, or reinstatement into the Naval Service or any other branch of the Armed Forces.  Neither a less than fully honorable discharge nor an unfavorable “RE” code is, in itself, a bar to reenlistment.  A request for waiver is normally done only during the processing of a formal application for enlistment through a recruiter.  

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; Article 91, disrespect to a SNCO; Article 92, disobey a lawful order; Article 112a, illegal drug use; Article 118, provoking words; and Article 134, drunk and disorderly.

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	
		Washington, D.C.  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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