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Docket No. MD04-01322

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

ex-Pvt, USMC
Docket No. MD04-01322

Applicant’s Request

The application for discharge review was received on 20040818.  The Applicant requests the characterization of service received at the time of discharge be changed to honorable.  The Applicant requests a documentary record discharge 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 20050304.  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

Applicant’s issues, as stated on the application:

1.  “This was an isolated incident my whole time in the Marine Corps.  My record was impeccable prior to.  I love the Marine Corps and in no way did this incident have anything to do with the Marines.  I had a lot of serious family issues all going on at once, and I made an error in judgement, and put my own needs before the Marine Corps and my unit.  It had nothing to do with how I felt towards the Marine Corps.”

Documentation

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

Applicant’s DD Form 214
Ltr from HQMC dtd 040525
Promotion warrant dtd 990202
Promotion warrant dtd 980821
Ltr of Appreciation from CO, Marine Corps Recruiting Station Cleveland dtd 990223
NMCCCA decision decided 020830 (3 pages)

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: USMCR(J)		980518 - 980525	COG

Period of Service Under Review:

Date of Enlistment:  980526		Date of Discharge:  030115

Length of Service (years, months, days):

	Active:    04  07  20		[Does not exclude lost time]
	Inactive:  None

Age at Entry:  20			Years Contracted:  4

Education Level:  12			AFQT:  39

Highest Rank:  LCpl			MOS:  0861

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  3.4*			Conduct:  3.0

Military Decorations:  None

Unit/Campaign/Service Awards:  None

Days of Unauthorized Absence:  66

*Marks extracted from Record of Trial

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:

981204:	Counseled for deficiencies in performance and conduct.  [Academic failure at MAGTF Intelligence Specialist Course]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

990613:	Applicant to UA.

990629:	Applicant from UA.

990827:	Summary Court-Martial.
	Charge I:  violation of the UCMJ, Article 86.  
	Specification:  Unauthorized absence from 990613 until apprehended 990629 (17 das).
	Finding:  Guilty.
	Sentence:  Forfeiture of $639.00, reduced to E-1 and 60 das restriction.
	[Extracted from Staff Judge Advocate Recommendation dtd 000927 & Record of Trial, Prosecutor Exhibit 3]

990829:	Applicant to unauthorized absence.

991016:	Applicant apprehended by civil authorities, to confinement.

000225:	Special Court-Martial.
	Charge:  violation of the UCMJ, Article 86:
	Specification:  Did on 990829, w/o auth, abs himself from his unit until apprehended on 991016 (49 das).
	Additional Charge I:  violation of the UCMJ, Article 121:
	Specification 1:  Did on 990829 steal one set of car keys, one wallet and one credit card, all of some value, the prop of LCpl C. J. D_, USMC.
	Specification 2:  Did on 990829 steal an automobile, two pagers, one pair of sunglasses and one compact disc case containing fifty compact discs, all of a value in excess of $100.00, the prop of LCpl C. J. D_, USMC.
	Specification 3:  Did, fr abt 990829 to abt 991010 steal an airline ticket of a value in excess of $100.00, the prop of United Airlines.
	Additional Charge II:  Violation of the UCMJ, Article 134:
	Specification:  Having been restricted to the limits of pl of mess, billeting, worship and pl of du, by a person auth to do so, did, on 990829, break said restriction.
	Findings:  to Charge I and specification thereunder, guilty.  To Additional Charge I and the specifications thereunder, except in Specification 1, excepting the words “one set of car keys, one wallet,” and further excepting the word “all,” and in Specification 2, excepting the word “steal,” substituting the words “wrongfully appropriate one set of car keys, one wallet.”  Additional Charge II: withdrawn.  
	Sentence:  Fine of $670.00 pay per month for 6 mos, confinement for 180 days and a bad conduct discharge.
	CA 001107:  Sentence approved and ordered executed except for the BCD.

000312:	From confinement, to duty.

000322:	To appellate leave.

010108:	To involuntary appellate leave.

010621:	NC&PB denied clemency and restoration.

020830:	NMCCCA:  Affirmed findings and sentence.

021209:	NMCARA:  No petition being received, appellate review considered complete.

021230:	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 20030115 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.  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 and that the sentence awarded the Applicant at his court-martial was appropriate for the offenses he committed.  Additionally, the NDRB has no jurisdiction over reenlistment, reentry, or reinstatement into the Navy, Marine Corps, or any other of the Armed Forces, NDRB is not authorized to change a reenlistment code.   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.  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 P1900.16F), effective 01 September 2001 until Present. 

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 5420.174D of 22 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

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.