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Docket No. MD03-01313

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

, ex-PVT, USMC
Docket No. MD03-01313

Applicant’s Request

The application for discharge review was received on 20030801.  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 review was conducted in Washington, D.C. on 20040526.  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

No issues were submitted by the Applicant. 

Documentation

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

Statement from Applicant
Copies of DD Form 214 (2)

PART II - SUMMARY OF SERVICE

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

	Active:   USMC		None
	Inactive: USMCR(J)		870425 - 870504	COG

Period of Service Under Review:

Date of Enlistment:  870505		Date of Discharge:  920206

Length of Service (years, months, days):

	Active:    04  09  01
	Inactive:  None

Age at Entry:  21			Years Contracted:  6

Education Level:  12			AFQT:  68

Highest Rank:  LCpl

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  4.2 (11)			Conduct:  3.9 (11)

Military Decorations:  None

Unit/Campaign/Service Awards:  MM, SSDR, Rifle Sharpshooter Badge 

Days of Unauthorized Absence:  208 

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:

880219:	NJP for violation of UCMJ, Article 86: UA from 1200, 880212 to 1159, 880216 from HqSvcCo, 3dBn, 8thMar, violation of UCMJ, Article 90: Willfully disobeyed 2Dlt. R___’s order not to leave the area during the 96 hour liberty.
	Award:  Forfeiture of $178.00 pay per month for 1 month ($78.00 suspended for 6 months), 14 days restriction to run concurrent with 14 days extra duty.  No indication of appeal in the record.

890829:	NJP for violation of UCMJ, Article 86: UA from 0500, 890818 to 1600, 890821 from HqSvcCo, 3dBn, 8thMar.
	Award:  Forfeiture of $150.00 pay per month for 1 month (suspended for 45 days), to be restricted to the limits of HqSvcCo, 3dBn, 8thMar for a period of 10 days to run concurrent with 10 days extra duty without suspension from duty.  No indication of appeal in the record.

891220:	Summary Court-Martial.
	Charge I:  violation of the UCMJ, Article 86.
	Specification: UA from 3dBn, 8thMar, 2dMarDiv, FMF, from 890908 to 891120. 
	Finding:  to Charge I and the specification thereunder, guilty.
	Sentence:  Forfeiture of $466.00 pay per month for 1 month, reduced to E-1, confinement for 10 days with suspension from duty.
	CA action 891220:  Sentence approved and ordered executed.  Confinement for a period of 10 days is suspended for a period of 6 months from the date of this action.

900906:	Special Court-Martial.
	Charge I:  violation of the UCMJ, Article 86,
	Specification: Did at CamLej, NC, on 900402, without authority absent himself from his unit and did remain so absent until apprehended on 900805.
	Findings:  to Charge I and specification thereunder, guilty.
	Sentence:  Confinement for 90 days, forfeiture of $482.00 pay per month for 6 months, reduction to E-1, and a bad conduct discharge.
	CA 901221:  Only so much of the sentence as provides for a BCD, confinement for 45 days, forfeiture of $482.00 pay per month for 6 months, and reduction to pay grade E-1, is approved and, except for the BCD, will be executed.
	
900911:	Applicant waived clemency review.

910721:	To appellate leave.

910802:	NMCCMR:  Affirmed findings and sentence.

911217:	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 19920206 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).  

The Applicant introduced no decisional issues for consideration by the Board.

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 evidence of record did not contain sufficient mitigating or extenuating factors to offset the seriousness of the offenses for which the discharge was awarded.  In addition, the reason for discharge, conviction by special court-martial, is most appropriate.  Relief denied.

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 documentation to support any claims of post-service accomplishments or any other evidence related 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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