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

ex-Pvt, USMC
Docket No. MD04-00572

Applicant’s Request

The application for discharge review was received on 20040224.  The Applicant requested the characterization of service received at the time of discharge be changed to honorable.  The Applicant requested a personal appearance hearing before the Board in the Washington, D.C. Metropolitan area.  The Applicant did not list any representative on his DD Form 293.  Subsequently, the Applicant obtained representation from the American Legion.

Decision

A personal appearance discharge review was conducted in Washington, D.C. on 20050308.  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 court-martial (SPCM) – Other, authority: MARCORSEPMAN Par. 1105.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Issues submitted by Applicant’s counsel/representative (AMERICAN LEGION):

1.  “Equity Issue:  Pursuant to 10 USC 874 (b) (UCMJ, Article 74) and in accordance with SECNAVINST 5420.174D, part V, paragraph 503 this former member requests the Board’s clemency relief with up-grade of his characterization of service on the basis of his post-service conduct.
_______________________________________________________________________

In accordance with 32 C.F.R., section 724.166, and SECNAVINST 5420.174D, part 1, paragraph 120, The American Legion submits to the Naval Discharge Review Board (NDRB or Board) the above issue and following statement in supplement to the Applicant’s petition.

The American Legion’s express purpose in providing this statement and any other submittals or evidence filed is to assist this Applicant in the clarification and resolution of the impropriety or inequity raised.  To that end, we rest assured that the NDRB’s final decision will reflect sound equitable principles consistent in law, regulation, policy and discretion as promulgated by title 10 U.S.C., section 1553, and set forth in 32 C.F.R., part 724 and SECNAVINST 5420.174D.

This case is now respectfully submitted for deliberation and disposition.” 

The American Legion indicated that the above issue supercedes the issue filed by the Applicant on his DD Form 293.
Documentation

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

Applicant’s DD Form 214
Character reference, dated July 28, 2003
Job/character reference, dated January 11, 2004
Job/character reference, dated April 22, 2003
Letter from Applicant’s wife, dated February 2, 2004
Letter from Applicant, dated February 7, 2004
Applicant’s Decisional Document (4 pages), dated June 2, 1997
Record of Trial from Applicant (78 pages)
Background report dated February 21, 2005 (2 pages)
Bachelor of Science degree certificate from Thomas A. Edison State College dated July 15, 1998

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: USMCR (J)		840121 - 840124	COG

Period of Service Under Review:

Date of Enlistment:  840125		Date of Discharge:  890915

Length of Service (years, months, days):

	Active:    05  04  22 		(Excludes lost time)
	Inactive:  None

Age at Entry:  19			Years Contracted:  4

Education Level:  12			AFQT:  50

Highest Rank:  LCpl			MOS:  3522 

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  4.0 (12)			Conduct:  4.1 (12)

Military Decorations:  GCM, LoA

Unit/Campaign/Service Awards:  SSDR, MM, RMB

Days of Unauthorized Absence:  48

Character, Narrative Reason, and Authority of Discharge (at time of issuance):

BAD CONDUCT DISCHARGE/As a result of a court-martial (SPCM) - Other, authority:  MARCORSEPMAN Par. 1105.

Chronological Listing of Significant Service Events:

840116:	Applicant briefed upon and certified understanding of Marine Corps policy concerning illegal use of drugs.  Enlistment waiver was granted.

850702:	SACO/DACO eval/comment:  Diagnostic impression of the Applicant’s substance abuse was considered to be an isolated incident and the treatment recommendation was the Navy Alcohol and Substance Abuse Prevention Program (NASAPP).

860212:	Counseled for deficiencies in performance and conduct.  [Poor judgment concerning Barracks regulation and orders.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

860321:	Counseled for deficiencies in performance and conduct.  [Lack of maturity and poor leadership example.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

870330:	Counseled for deficiencies in performance and conduct.  [Financial irresponsibility, failure to maintain sufficient funds in your checking account, resulting in your appearance on the bad check list.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

871216:	Special Court-Martial.
	Charge I:  violation of the UCMJ, Article 86 (2 Specifications):
	Specification 1:  … on 17 Jun 87, without authority, go from his appointed place of duty.  Plea:  NG.  Finding: NG.
	Specification 2:  … on 20 Jul 87, without authority, absent himself from his unit and did remain so absent until 10 Aug 87.  Plea:  G.  Finding: G.
	Charge II:  violation of the UCMJ, Article 90.
Specification:  … disobey the lawful command of a superior commissioned officer …  Plea: G.  Finding: G.
	Charge III:  violation of the UCMJ, Article 107.
Specification:  Did … with the intent to deceive, make a false official statement …  Plea: G.  Finding: G.
Charge IV:  violation of the UCMJ, Article 134.
Specification:  Did … communicate a threat to injure …  Plea: NG, but guilty of a violation of Article 117.  Finding: G, as pleaded.
Additional Charge I:  violation of the UCMJ, Article 86.
	Specification:  … on 8 Sep 87, without authority, absent himself … and did remain so absent until 4 Oct 87.  Plea: G.  Finding: G. 
Additional Charge II:  violation of the UCMJ, Article 92.
	Specification:  … violate a lawful general order … by wrongfully discharging a pistol in a training area/bow hunting area.   Plea: G.  Finding: G. 
 	Sentence:  Bad Conduct Discharge, confinement for a period of 50 days, and reduced to E-1.
	CA 880210:  Sentence approved and ordered executed except for the BCD.

871216:	Applicant to confinement.

880122:	NC&PB review waived.

880124:	Applicant from confinement.

880302:	Applicant to appellate leave.

880914:	NMCCMR:  Affirmed findings and sentence.

890915:	SSPCMO:  Article 71c, UCMJ, having been complied with, Bad Conduct Discharge ordered executed.

970602:	NDRB documentary record review Docket Number MD97-00541 conducted.  Determination:  discharge proper and equitable; relief not warranted.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19890915 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.  Relevant and material facts stated in a court specification are presumed by the NDRB to be established facts.  With respect to a discharge adjudged by a special 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.  The Applicant was found guilty at a special court-martial of unauthorized absence, disobeying a commissioned officer, disobeying a lawful regulation, making a false official statement, and using provoking words or gestures.  The Board was impressed by the Applicant’s dedication to family, educational pursuits and career achievements.  However, after a thorough review of the Applicant’s record, issue and post service accomplishments, the Board determined that clemency was not warranted and that the sentence awarded the Applicant at his court-martial was appropriate for the offenses he committed.  Relief denied.

The NDRB has no authority to provided additional review of this 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 P1900.16D), effective 27 Jun 89 until 17 Aug 95.

B.  The Manual for Court-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 90, Willfully disobeying superior commissioned officer; Article 92, Failure to obey a regulation; Article 107, False official statement; and Article 117, Provoking speeches or gestures.

C.  Secretary of the Navy Instruction 5420.174D of 20 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part II, 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 “http://Boards.law.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:

		Secretary of the Navy Council of Review Boards
		Attn:  Naval Discharge Review Board
		720 Kennon Street SE Rm 309
		Washington Navy Yard DC  20374-5023