Author: CAP
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Docket No. MD05-00758

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

FOR OFFICIAL USE ONLY

 ex-PVT, USMC
Docket No. MD05-00758

Applicant’s Request

The application for discharge review was received on 20050330.  The Applicant requests the Discharge 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 did not designate a representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20060403.  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:

1.  Maturity level (mentally was still in age of innocense)
2.  Readjustment factor (couldn’t pull straight after Desert Shield/Storm)
3.  Conditioned Ideals (Personal, Social and Historical Factors)
4.  Independent Reality (Individual Sense of Separation from work, society)

Applicant’s issues, as stated on an attached document/letter to the Board:

“Man is not bad, except he is made so by arbitrary morality.  Bad examples pervert him.  Being physically mature does not equal mental maturity.  Meaning one usually arrives before the other, in case at hand, “Physicality First”.  Pre Desert Shield/Storm, Life was the corp, in all aspects.  The corp was creating a marine.  Sending my person to different schools outside my mos, building for a future purpose.  I could not wait to assist the corp in bringing these new talents into action.  Theoretically I was ready, but practically, too young.  Post Desert Shield/Storm things fell apart.  I felt isolated from my ownself.  It was as if my feelings were numb striking out, in the audible sense, against all.  My goal- direction in being able to adapt to changes the marine corp bring about, wasn’t in stride anymore.  A marine signifies the essence of all particular marines.  But through my experience, wisdom was not taught.  Life was no longer of method and order.  Instead it was a magnet for confusion.  Whether it was stress from being in the desert itself or stress from knowing what could have happened.  Things haven’t been structured in my life, as once were.  But to be slapped and down graded by a Bad Conduct Discharge, when the military was down sizing is excessive!  Because in society you are viewed as you are labeled.  None of these problems were alive before Desert Shield/Storm.  So I ask the board to take these underlining factors and influences into consideration.”

Thank you for your time and patience
[signed] R_ G_”

Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant’s DD Form 214 (2)
Applicant’s Personal Information 

PART II - SUMMARY OF SERVICE
Prior Service (component, dates of service, type of discharge):
	Inactive:  USMCR (DEP)	19880928 – 19881017		COG
	Active:    None

Period of Service Under Review:

Date of Enlistment:  19881018		Date of Discharge:  19931227

Length of Service (years, months, days):

Active:    04  11  20  (excludes lost time)
	Inactive:  None

Time Lost During This Period (days):

	Unauthorized absence:  none
	Confinement:		  79 days

Age at Entry:  19 

Years Contracted:  6 

Education Level:  12				AFQT:  NA*

Highest Rank:  LCpl				MOS:  2531

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  4.4 (6)			Conduct:  4.2 (6) 

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as stated on the DD Form 214):  Rifle Sharpshooter Badge, Pistol Sharpshooter Badge, Sea Service Deployment Ribbon with 1 Star, Kuwait Liberation Medal (1 Palm) (Persian Gulf), Southwest Asia Service Medal with 2 stars, National Defense Service Medal.

*Not Available

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:

910703:	NJP for violation of UCMJ, Article 134:  In that LCpl G_ while posted as sentinel, did, at CLNC on or about 2220, 910621, did wrongfully fall asleep on his post.
	Award:  Forfeiture of $200 per month for 1 month, (forfeiture of $100 per month for 1 month suspended for 3 months) restriction for 14 days, extra duty for 14 days (7 days extra duty suspended for 3 months), correctional custody for 7 days (suspended for 3 months).  Not appealed.

911011:	Applicant to pre-trail confinement.

911122:	Special Court Martial
	Charge I:  violation of the UCMJ, Article 86. 
	Specification:  Did, at Camp Lejeune, North Carolina, on or about 0700 911010, without authority, absent himself from his unit, and did remain so absent until at or about 1930, 911010.  Plea: Military judge entered plea not guilty.  Finding: Guilty. 
	Charge II:  violation of UMCJ, Article 91, (2 specifications).
	Specification 1:  Did, at Camp Lejeune, North Carolina, on or about 911011, having received a lawful order from 1stSgt C. W_, Jr., USMC, a superior staff noncommissioned officer, then known by the said Lance Corporal G_ to be a superior staff noncommissioned officer, to get back in the Battery office, an order which it was his duty to obey, willfully disobey the same.  Plea: Guilty.  Finding: Guilty.
	Specification 2: Was, at Camp Lejeune, North Carolina, on or about 911011, disrespectful in language toward 1stSgt C. W_, Jr., USMC, a superior staff noncommissioned officer, who was then in the execution of his office, by saying to him, “F_ y_,” and “Don’t point your finger at me, “ or words to that effect.  Plea: Guilty.  Finding: Guilty.
	Charge III:  violation of UCMJ, Article 92.
	Specification: Did, at Camp Lejeune, North Carolina, on or about 911010, violate a lawful general order, to wit: paragraphs 1001 and 5008, MCB Order P5560.23, by driving while his base privileges were revoked and possessing an open container of alcohol in a motor vehicle.  Plea: Guilty.  Finding: Guilty, except for the words, “and possessing an open container of alcohol in a motor vehicle.”
	Sentence:  Confinement for 3 months, forfeiture of $502 per month for 3 months, reduction to E-1, Bad Conduct discharge.
	CA 920310:  Only so much of the sentence as provides for a bad conduct discharge, confinement for a period of three months, forfeiture of $502.00 pay per month for three months, and reduction to pay grade E-1 is approved and, with exception of the bad conduct discharge, will be executed.

911219:	Applicant waived clemency review by the Naval Clemency and Parole Board.

911226:	Applicant from confinement and to appellate leave.

930205:	NMCCMR:  Affirmed findings, except to the finding of guilty to Charge III and its Specification.  Charge III and its Specification were found in excess of an attempt to violate the general order alleged.  The sentence was reassessed and the remaining findings of guilty and the sentence approved on review.  

930610:	Appellate review complete.

931030:	SSPCMO:  Article 71c, UCMJ, having been complied with, Bad Conduct discharge ordered executed.

931222:	Applicant from appellate leave.

931227:	Applicant discharged.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19931227 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).  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).  

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 and issues submitted, 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 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 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 91, willfully disobey a noncommissioned or petty officer.

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