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

ex-Pvt, USMC
Docket No. MD04-00660

Applicant’s Request

The application for discharge review was received on 20040309.  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 discharge review.  The Applicant listed a private representative as the representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20041008.  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

Issues submitted by Applicant’s representative (private representative):

1.  “Ladies and Gentlemen of the Board,

The documents submitted begin to describe the foundation for this case.  This marine did indeed violate the amount of time allowed to him for recruiters assistance and as the previous court may not have wanted to consider, that the birth of his daughter combined with heated domestic affairs contributed to this situation.  However. Pvt H_ (Applicant) was not unfairly given a Bad Conduct Discharge for this charge.  Pvt H_ (Applicant) was given a Bad Conduct Discharge (SPCM) for violations regarding Article 92 and Article 112a to which he plead guilty.

Only as recently as the United States v. Quiroz case did the evidence of Pvt. H_’s (Applicant's) role in assisting the NCIS and his living conditions at the time come into light. Pvt H_ (Applicant) was a USMC Mortar man and a recent graduate from Paris Island.  He was sent to Hawaii to train and dedicate himself to the vocation of arms. Pvt H_ (Applicant) did not intend nor plan to be placed within a unit that was imbedded with racketeering, the dealing of explosives, and drugs. Pvt. H_ (Applicant) was new to the dynamic environment of the United States Marine Corps and did not need individuals like Corporal H_ and A_ Q_ setting the example especially while he was remanded to their command for a much lesser charge.  It was in fact the NCIS agent, J_ G_, that first approached Pvt H_ (Applicant) with the promises of a quid pro quo in reference to his current charges.  He commissioned Pvt H_ (Applicant) to get inside these illegal operations in Kaneohe Bay and make a purchase of stolen explosives from A_ Q_.  Although this scene appears to be that of a late night police drama, this was Pvt H_’s (Applicant’s) reality.  It was this commission alone which further spawn the relationship between H_ (Applicant) H,  and Q_.  As Private H_ (Applicant) remained on close watch while at Headquarters and Support, Cpl H_ (Ammunition Tech) and A_ Q_ had long ago set up their illegal operations and only appeared to be responsible Noncommissioned Officers.

The rest is history.  Pvt H_ (Applicant) may never actually recover from this particular stressor on June 29 1998.  He still suffers to this day and has recently been diagnosed Bipolar disorder all the while paranoid that any one of Cpl. H_, A_ Q_ or NCIS agent J_ G_ will make good on their promise to end or destroy his life one way or the other.  In fact, the physical altercation between Cpl H_ and Private H_ (Applicant), after Q_ was arrested, to this date is no where on record.  Private H_ (Applicant) said nothing as they read him his rights, nor did he ever ask to appeal the process for fear of reprisal from H_ (Applicant). Private H_'s (Applicant's) only concern was to forget about his experience in the Marine Corps and get back to his daughter in Oklahoma.  At this time he is not requesting for an Honorable discharge, at his current age of 27 he looks back on his folly and mentally punishes himself for his lack of situational awareness.  Nevertheless he requests to have his discharge upgraded to a general under honorable or the best case scenario the board will see to.

I request the board to consider the fragile nature of a young marine.  After all those of us that have served know how powerful a Corporal’s position can be.  After all, they are Noncommissioned officers which should hold a measure of accountability for their troops, not emplace them into a world of crime.  If Mr. H_ (Applicant) were a true criminal he would currently be serving time as is Mr. Q_.  However Mr. H_’s (Applicant's) only crime is failing to control his emotions over his family, making some undeniable bad decisions, and adhering to priorities that conflicted with that of the 2nd Marines.  Mr. H_ (Applicant) understands that he will never be able to make up for his lost time in the Marine Corps, however now its time we focus on the future. Unfortunately, Mr. H_ (Applicant) does not have the resources to appear before a board.  The knowledge of this former Marine’s past haunts his everyday life. The Bad Conduct Charge and the stigma which surrounds this talisman of shame, has brought this young man to the verge of taking his own life.  It is unfortunate to witness a scenario whereas motivation and desire accompanied with the romantic notion of actually being a United States Marine can be misled and turned into something shameful and ugly.  Thank you for your cooperation and anxiously look forward to your response.

Sincerely,

C_ H_ (private representative)”

Documentation

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

Three pages from Applicant’s special court martial
Thirty-three six pages from a case of the United States, Appellant v. Private First Class Quiroz, Appellee

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: USMCR(J)		960930 - 961104	COG

Period of Service Under Review:

Date of Enlistment:  961105		Date of Discharge:  990722

Length of Service (years, months, days):

	Active:    02  08  18	Does not exclude lost time
	Inactive:  None

Age at Entry:  20			Years Contracted:  4

Education Level:  10 GED		AFQT:  49

Highest Rank:  PFC			MOS:  0341

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  2.8 (7)			Conduct:  2.5 (8)

Military Decorations:  None

Unit/Campaign/Service Awards:  RMB

Days of Unauthorized Absence:  35

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:

970429:	NJP for violation of UCMJ, Article 91:
Specification: Disrespectful towards GySgt by stating “I am going to carry this all the way up”
Awarded forfeiture of $210.00 per month for 1 month, restriction and extra duties for 14 days.  Restriction and extra duty suspended for 6 months.  Not appealed.

980423:	Summary Court-Martial.
	Charge I: violation of the UCMJ, Article 86:
	Specification: Absent from organization from 971229 to 980204.
	Charge II: violation of the UCMJ, Article 87:
	Specification: Missed movement on 980107.
	Finding: to Charge I and II and the specification thereunder, guilty.
	Sentence: Forfeiture of $617.00 for 1 month, confinement for 30 days, reduction to E-1.
	CA action Undated: Sentence approved and ordered executed.

980504:	NAVDRUGLAB, San Diego, CA, reported Applicant’s urine sample, received 980427, tested positive for cocaine and THC.

980505:	Counseled for deficiencies in performance and conduct.  [Illegal drug involvement; specifically, use of cocaine/THC, identified through urine sample(s) reported on message date time group 042229Z May 98 from NAVDRUGLAB San Diego CA.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.  Applicant refused to sign.

980618:	Counseled for deficiencies in performance and conduct.  [Recent NJP held on 980618 for violation Article 112a X 2.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

980619:	NJP for violation of UCMJ, Article 112A (2 specs)
Specification 1: Wrongfully use marijuana on 980410 and 980411.
Specification 2: Wrongfully use marijuana on 980419 and 980420.
Awarded forfeiture of $463.00 per month for 2 months, restriction and extra duties for 45 days.  Not appealed.

980619:	Counseled for deficiencies in performance and conduct.  [Recent NJP on 970430 for violation Article 91.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

980714:	Applicant evaluated by Substance Abuse Counseling Center.  [Microfiche unreadable]

980714:	Applicant signed VA statement of understanding.  No diagnosis and do not rate VA treatment prior to separation.

980714:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse.

980714:	Applicant advised of rights.  [Microfiche unreadable]

980714:	Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse.  The factual basis for this recommendation was your wrongful use of marijuana and cocaine.  

980718:	SJA review.  [Microfiche unreadable]

980718:	GCMCA [Commander, Marine Corps Base Hawaii] directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to drug abuse.

980813:	Special Court-Martial.
	Charge I: violation of the UCMJ, Article 92:
	Specification: Possess drug paraphernalia.
	Charge II: violation of the UCMJ, Article 112A:
	Specification: Possess marijuana.
	Findings: to Charge I and II and specifications thereunder, guilty.
	Sentence: Fine of $617.00 per month for 6 months, confinement for 6 months, and a bad conduct discharge.
	CA 980923: Sentence approved and ordered executed except for the BCD.

980922:	Applicant waived clemency review.

990210:	NMCCMR:  Affirmed findings and sentence.

990722:	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 19990722 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 remains eligible for a personal appearance hearing, provided an application is received, at the NDRB, within 15 years from the date of 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 010831. 

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, possession of an illegal substance.  

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