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Docket No. MD03-01095

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

ex-Pvt, USMC
Docket No. MD03-01095

Applicant’s Request

The application for discharge review was received on 20030610.  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 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 20040608.  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:

“1.  Sirs:  I seek to up-grade the re-entry code on my discharge so I may be allowed to enlist in the MS Army Natl Guard.  I do no simply seek an up-grade but an opportunity to serve once again and earn the discharge which comes with honorable service to our great nation.  I beg of you your help in this.  I was a foolish young man and I had no thought of the future at that time.  I can not tell you how ashamed I am of what I have done in the past.  God save me in 1994 and I am horrified at things which I have done.  Please, if at all possible, allow me the opportunity to right this past wrong.  I owe it to my country, my children, my family, and foremost to the God of Heaven whom I now respresent.”

Documentation

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

Copy of DD Form 214
Letter from Applicant
Letter of recommendation
Certificate of Ministry License, dated Dec 15, 1996
Certificate of completion, dated Sep 24, 1998

PART II - SUMMARY OF SERVICE

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

	Active:   USMC		840604 - 870728	HON
	Inactive: USMCR(J)		830627 - 840603	COG

Period of Service Under Review:

Date of Enlistment:  870729		Date of Discharge:  900502

Length of Service (years, months, days):

	Active:    02  09  05
	Inactive:  None

Age at Entry:  21			Years Contracted:  4 

Education Level:  12			AFQT:  95

Highest Rank:  LCpl

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  4.4 (11)			Conduct:  4.5 (11)

Military Decorations:  None

Unit/Campaign/Service Awards:  SSDR, GCM, LOA 

Days of Unauthorized Absence:  470 

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:

871030:	NJP for violation of UCMJ, Article 86:
Specification:  UA 0900-1300, 871019.
Awarded forfeiture of $437.40 per month for 2 months.  Forfeiture suspended for 6 months.  Not appealed.

880119:	Applicant declared a deserter on 880104 having been an unauthorized absentee since 1300, 871203 from organization.

890320:	Applicant surrendered to military authorities 890317 (1200) at Columbus Air Force Base MS.  

900502:	Special Court-Martial.
	Charge I: Violation of the UCMJ, Article 86:
	Specification: Unauthorized absence from 871203 to 890318.
	Findings: To Charge I and specification thereunder, guilty.    
	Sentence:  Fine of $250.00 per month for 2 months, confinement for 2 months, reduction to E-1, and a bad conduct discharge.
	CA 890629:  Sentence approved and ordered executed except for the BCD.

890616:	To appellate leave.

890906:	NMCCMR:  Affirmed findings and sentence.

900502:	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 19900502 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.  The action of the NDRB is restricted to upgrades based upon clemency only  when a discharge is adjudged by a court-martial case tried under the Uniform Code of Military Justice (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 service records that the Board reviewed showed no mitigating or extenuating factors sufficient to offset the seriousness of the offenses for which the discharge was awarded.  Relief is therefore denied.

Concerning a change in reenlistment code, 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 remains eligible for a personal appearance hearing, provided an application is received, at the NDRB, within 15 years from the date of discharge.  The Applicant can provide additional documentation to support any claims of post-service accomplishments or any other evidence relating to his discharge at that time.  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.  

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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