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Docket No. MD03-01024

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

 ex-Pvt, USMC
Docket No. MD03-01024

Applicant’s Request

The application for discharge review was received on 20030521.  The Applicant requests the characterization of service received at the time of discharge be changed to honorable.  The Applicant requests a personal appearance discharge review before a traveling panel closest to Norwalk, CA.  The Applicant did not designate a representative on the DD Form 293.  In  the acknowledgement letter, the Applicant was informed that the Naval Discharge Review Board (NDRB) first conducts a documentary review prior to any personal appearance hearing; also advised that the NDRB does not travel, all hearings are held in the Washington Capital Region.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20040415.  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/COURT-MARTIAL, authority: MARCORSEPMAN Par. 1105.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

1.  “I J_ O_ (Applicant) respectfully request to have a discharge upgrade I believe I was wrongfully enlisted in a different M.O.S. than I was originally interested in I was interested in bein a mechanic but instead went infantry I was disqualified for mechanic for color blindness but since I have been out I have done many physicals and have not been labled color blind in any of them Please review my case.”

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:   None
	Inactive: USMCR(J)		970917 - 980713	COG

Period of Service Under Review:

Date of Enlistment:  980714		Date of Discharge:  010212

Length of Service (years, months, days):

	Active:    02  06  29 [Doesn’t exclude lost/confinement time & appellate leave]
	Inactive:  None

Age at Entry:  18			Years Contracted:  4 

Education Level:  12			AFQT:  38

Highest Rank:  PFC

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  2.7 (Unknown)			Conduct:  2.1 (Unknown)

Military Decorations:  None

Unit/Campaign/Service Awards:  Rifle Expert Badge

Days of Unauthorized Absence:  93

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:

990304:	NJP for violation of UCMJ, Article 86:  Unauthorized absence from 1801, 990223, to 1345, 990225.
Awarded forfeiture of $239.00 pay per month for 1 month, restriction and 
extra duties for 10 days.  Not appealed.

990603:	NJP for violation of UCMJ, Article 86 (3 specs):  Unauthorized absence from 2001, 990312, to 2030, 990314; UA from 1710, 990320 to 1128, 990323, UA from 0501, 990408 to 0830, 990429.
	Award:  Forfeiture of $479.00 pay per month for 2 months, restriction and extra duty for 45 days, reduction to E-1.  No indication of appeal in the record.

990706:	Counseled for deficiencies in performance and conduct.  [Violation of UCMJ, Article 86, unauthorized absence from 2001, 990312 to 2030, 990314, UA from 1710, 990320 to 1128, 990323, UA from 0501, 990408 to 0830, 990429.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

990816:	Applicant declared a deserter on 990806 having been an unauthorized absentee since 1801, 990707 from School of Infantry, Camp Pendleton.

990901:	Applicant apprehended by civil authorities and returned to military control.  Delivered to School of Infantry, Camp Pendleton, CA.

990901:	Pretrial confinement.

991001:	Special Court-Martial.
	Charge I:  violation of the UCMJ, Article 86:
	Specification:  Did, on or about 7 July 99, without authority, absent himself from unit, until apprehended on or about 1 September 99.
	Findings:  to Charge I and specification  thereunder, guilty.  
	Sentence:  Confinement 40 days, forfeiture of $600.00 pay per month for one month and a bad conduct discharge.
	CA 000327:  Sentence approved and ordered executed except for the BCD.

991022:	To appellate leave.

001031:	NMCCCA:  Affirmed findings and sentence.

010212:	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 20010212 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).  

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 absent of any mitigating or extenuating factors sufficient to offset the seriousness of the offense for which the discharge was awarded.  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.  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 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.  

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.
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