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

ex-Pvt, USMC
Docket No. MD03-01293

Applicant’s Request

The application for discharge review was received on 20030724.  The Applicant requests the characterization of service received at the time of discharge be changed to honorable.  The Applicant requested a documentary record discharge review.  The Applicant did not list a representative on his DD Form 293.  In the acknowledgement letter, the Applicant was informed he was approaching the 15 year point for review by this Board and was encouraged to attend a personal appearance hearing in the Washington D.C. area.  Applicant did not respond.  

Decision

A documentary discharge review was conducted in Washington, D.C. on 20040812.  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:

Issue 1:  “Dear Naval Council of Personnel Boards,

Prior to entering the United States Marine Corp,. I had no idea where I was going with my life.  Once I stepped upon those yellow footprints I knew I had found my calling.  Unfortunately I was young and foolish.  I did not realize the ramifications that would be incurred for my careless actions.  I was far from home and I know peer pressure played a part, but ultimately it was my lack of good judgment.

My discharge was inequitable because it was based on one isolated incident.  I was meritoriously promoted out of basic training as well as out of military police training.  Today, I feel that the training and discipline I received in the Corp has helped me in my accomplishments to date.  I have a great marriage and a beautiful home.  I have worded for a Super Stop & Shop for thirteen and a half years, where I am the assistant grocery manager.  I am a leader at my job as well as in my community.  I am an absolute advocate of the Marine Corp and the United States government.

In closing, I regret my actions as well as am sincerely sorry for the lack of judgment.  I do not use any kind of drugs today.  It would make my family and me so proud to hang an honorable discharge next to my basic training graduation picture.

Respectfully, yours,
(Applicant’s signature)
M_-J_ R. P_
Simper Fidelis
Enclosures (1)”

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)		860523 – 860527	COG

Period of Service Under Review:

Date of Enlistment:  860528		Date of Discharge:  881130

Length of Service (years, months, days):

	Active:    02  05  02  (Accounts for lost time.)
	Inactive:  None

Age at Entry:  20			Years Contracted:  4

Education Level:  12			AFQT:  63

Highest Rank:  LCpl

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  3.9 (5)			Conduct:  3.8 (5)

Military Decorations:  None

Unit/Campaign/Service Awards:  None 

Days of Unauthorized Absence:  None 

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:

870514:	Counseled for deficiencies in performance and conduct.  [Tardiness in reporting at the prescribed time for Military Police pre-service school training on three separate occasions.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

871208:	Special Court-Martial.
	Charge I:  violation of the UCMJ, Article 112a:
	Specification:  On Oahu, Hawaii between 19 August and 17 September 1987 wrongfully used marijuana.
	Findings:  to Charge I and the specification thereunder, guilty.  
Sentence:  Red to E-1, forf of $400.00 per month for 2 months, confined for 2 months, and a bad conduct discharge.
	CA 880205:  Sentence approved and ordered executed except for the BCD.

871208:	To confinement.

880119:	Applicant waived clemency review.

880127:	From confinement, to duty.

880502:	To appellate leave.

880628:	NMCCMR:  Affirmed findings and sentence.

881021:	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 19881130 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:  In response to the Applicant’s issue, relevant and material facts stated in a court-martial specification are presumed by the NDRB to be established facts.  With respect to a discharge adjudged by a court-martial case, the action of the NDRB is restricted to upgrades based on clemency.  Clemency is an act of leniency that reduces the severity of the punishment imposed.  After a thorough review of the Applicant’s record, issues submitted, and post service accomplishments, the Board determined that clemency was not warranted.

The Applicant states he “was young and foolish” and his discharge was based on one isolated incident.  Even though the civilian world treats some offenses with leniency because they are a first time occurrence on an otherwise clear record, the military does not view such offenses as minor infractions with regard to maintaining good order and discipline.  The Applicant’s service record is marred by a Special Court-Martial for illegal drug use, thus substantiating the misconduct for which he was separated.  Drug abuse warrants processing for separation.  There is no law or regulation that provides for an unfavorable discharge to be upgraded based solely on the passage of time or good conduct in civilian life subsequent to leaving the service.  Regulations limit the Board’s review to a determination on the propriety and equity of the discharge.  In the Applicant’s case, the Board could discern no impropriety or inequity and therefore considered his discharge proper and equitable.   Relief denied.

The following is provided for the edification of the Applicant.  The NDRB has no authority to provided additional review of his case since Applicant’s discharge occurred more than 15 years ago.  The Applicant may, however, petition the Board for Correction of Naval Records (BCNR), 2 Navy Annex, Washington, DC 20370-5100, concerning a change in the characterization of naval service, if he desires further review of his case.   

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 P1900.16C), effective 821001 until 890626. 

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 112a, Wrongful use of a controlled substances.

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