Author: CAP
Last saved by: joyce.meeks
Company: NCPB

Docket No. MD05-00486

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

FOR OFFICIAL USE ONLY

 ex-PVT, USMC
Docket No. MD05-00486

Applicant’s Request

The application for discharge review was received on 20050125.  The Applicant requests the Discharge 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 designate a representative on the DD Form 293.  

Decision

A documentary discharge review was conducted in Washington, D.C. on 20051006.  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 as a Bad Conduct Discharge by reason of court-marital.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

“The discharge I received does not fit my character.  It has been over six years since I made the terrible mistake.  This will be my third attempt to get my discharge upgraded.  I am a young, responsible, healthy father & husband who would like a second chance.  I am currently enrolled in a police academy level 3 at my neighborhood city college (El Camino College).  My true passion is children and I seem to have a great influence over them.  It would help me greatly if I could say I was discharged honorably or under honorable conditions.  Thank you for your time.

Sincerely,
[signed] J_ P. W_ (Applicant) “

Documentation

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

Applicant’s DD Form 214 (3)
Request for Clemency Ltr from Captain M. F. C_, Detailed Defense Counsel dtd August 29, 2000
Letter of Information from GySgt J_ D., Separation Company Gunny to Magistrate, via Capt C_, Legal Team “E” dtd August 28, 2000 (2pgs)
Character Reference ltr from Leading Petty Officer J_ V_, dtd July 19, 2000
Character Reference ltr from YN3 A_ F_, dtd July 20, 2000
Character Reference ltr from LCpl P_ M_, dtd July 18, 2000
Certificate of Completion (Level III El Camino Police Academy) dtd December 18, 2004
Certificate of Completion (Police Side Handle Baton) dtd December 18, 2004
Law of Arrest & Firearms Certification 

PART II - SUMMARY OF SERVICE

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

	Inactive:  USMCR (DEP)	19970514 – 19971006		COG
	Active:    None

Period of Service Under Review:

Date of Enlistment:  19971007		Date of Discharge:  20030903

Length of Service (years, months, days):

Active:    03  06  12
	Inactive:  None

Time Lost During This Period (days):

	Unauthorized absence:  865 days
	Confinement:		  1 day

Age at Entry:  18 

Years Contracted:  4 

Education Level:  12 (GED)				AFQT:  57

Highest Rank:  PVT				MOS:  0300

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  2.5 (1) 			Conduct:  1.7 (1)

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as stated on the DD Form 214):  Rifle Sharpshooter Badge.

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:

980227:	Company NJP for violation of UCMJ, Article 134:
	Specification: At B Co, ITBn, SOI, MCB, CamPen, in that PVT W_, did on or about Feb 98, was drinking alcohol while under the legal age of 21, in which SNM is under 21.
	Award:  Forfeiture of $216 per month for 1 month, restriction and extra duty for 14 days.  Suspended forfeiture of $216 per month for 1 month, for 6 months.  Not appealed.

980227:	Applicant to unauthorized absence at 1900 on 980227.

000712:	Applicant from unauthorized absence at 0900 on 000712 (865 days/surrendered).

000712:	Pre-trial restriction from 000712 to 000829, 24 days credited against the sentence to confinement.

000829:	Special Court Martial [trial date 000829]
	Charge I:  violation of the UCMJ, Article 86, 
	Specification:  In that Pvt W_ (Applicant), U.S. Marine Corps, on active duty, did on or about 27 February 1998, without authority absent himself from his unit, to wit: Headquarters and Support Battalion, School of Infantry, Marine Corps Base, located at Camp Pendleton, CA, and did remain so absent until on or about 12 July 2000.
	Findings:  to Charge I and specification thereunder, guilty, except for the number and word “27 February”; substituting, therefore, the number and word “2 March”; to the excepted number and word, Not Guilty; to the substituting number and word, Guilty; to the specification as excepted and substituted, Guilty.
	Sentence:  Confinement for 75 days, Bad Conduct discharge.
	CA 010420:  The sentence approved and, except for the bad conduct discharge, ordered executed, but execution of that portion of the sentence adjudging all confinement in excess of 30 days is suspended for a period of 12 months from the date of trial, at which time, unless sooner vacated, the suspended portion of the sentence will be remitted without further action.
	
000829:	To confinement.

000830:	From confinement.  Applicant authorized voluntary appellate leave.

010423:	Applicant to involuntary appellate leave.

030109:	NC&PB: No clemency granted.

030327:	NMCCCA:  Affirmed findings and sentence.  

030508:	Appellate review complete.

030808:	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 20030903 with a bad conduct discharge which was the sentence adjudged by a properly convened special court-martial.  The convening and appellate review authorities subsequently approved the sentence (A and B).  After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, the Board found that the Applicant’s issues were insufficient to merit clemency (C).

The Applicant advises the Board that he is currently enrolled in a police academy course and desires a discharge characterization upgrade in order to improve his stature.  The action of the NDRB is restricted to upgrades based on clemency when a discharge is adjudged by a court-martial case.  Clemency is an act of leniency that reduces the severity of the punishment imposed.  Relevant and material facts stated in a court-martial specification are presumed by the NDRB to be established facts.  After a thorough review of the Applicant’s record and issues submitted, the Board determined that clemency is not warranted.  The sentence awarded the Applicant at his court-martial was appropriate for the offense he committed.  Further, the Applicant is advised that the Board has no authority to upgrade a discharge for the sole purpose of enhancing educational or employment opportunities.  These issues do not serve to provide a foundation upon which the Board can grant relief.  Relief on this basis is denied.

The following is provided for the Applicant’s edification.  While there is no law or regulation, which provides that an unfavorable discharge may be upgraded based solely on the passage of time or good conduct in civilian life subsequent to leaving the Marine Corps, the Board is authorized to consider post-service factors in the recharacterization of a discharge to the extent such matters provide a basis for a more thorough understanding of the Applicant’s performance and conduct during the period of service under review.  Verifiable proof of any post-service accomplishments must be provided in order for the Applicant to claim post-service conduct and behavior as a reason to upgrade a less than honorable discharge.  The Applicant submitted five character references for consideration.  The Applicant is advised that his efforts need to be more encompassing to include proof of verifiable employment records, documented community service, and certification of non-involvement with civil authorities.  At this time, there is not sufficient documentation of post service character and conduct to mitigate the misconduct that resulted in his characterization of discharge.  And so, no relief is granted on this basis.

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 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 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, Para 205(2), Jurisdictional Limitations Authority for Review of Discharges.

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