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

Docket No. MD05-00820

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

FOR OFFICIAL USE ONLY

ex-Pvt, USMC
Docket No. MD05-00820

Applicant’s Request

The application for discharge review was received on 20050406.  The Applicant requests the Discharge Characterization of Service received at the time of discharge be changed to honorable and the Narrative Reason for Separation be changed to “Convenience of the government.”  The Applicant requests a documentary record discharge review.  The Applicant designated the American Legion as the representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20051221.  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 and reason for 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:

“As the Board can see I no longer have a problem with alcohol and drugs as I have completed all programs.  My ability to make the right decisions in life was impaired by my youth and immaturity.  It is an injustice for me to continue to suffer the adverse consequences of this bad discharge.  I request clemency.”

The American Legion submitted no issues on the Applicant’s behalf.

Documentation

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

Applicant’s DD Form 214 (Member 1 and 4)
Letter from Homeless Health Care Center, dtd January 7, 2005
Letter from Chattanooga Community Kitchen, dtd January 7, 2005
Letter from Chattanooga Community Kitchen, dtd January 7, 2005

PART II - SUMMARY OF SERVICE

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

	Inactive:  USMCR (DEP)	19940120 - 19940919	COG
	Active:    None

Period of Service Under Review:

Date of Enlistment:  19940920		Date of Discharge:  19980424

Length of Service (years, months, days):

Active:    03  03  22  (excludes lost time)
	Inactive:  None

Time Lost During This Period (days):

	Unauthorized absence:  50 days
	Confinement:		  54 days

Age at Entry:  19

Years Contracted:  4

Education Level:  12				AFQT:  50

Highest Rank:  LCpl				MOS:  0311

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  4.1 (6)				Conduct:  3.5 (6)

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as stated on the DD Form 214):  National Defense Service Medal, Sea Service Deployment Ribbon, Rifle Marksman 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:

940830:	Pre-service waiver for serious offense granted.

940119:	Applicant briefed on and certified understanding of Marine Corps policy concerning illegal use of drugs.

960423:	Medical Record Entry:  “BAS 3/3 MCBH, HI.  Admin Note:  21 yro male, sent to B.A.S. by Co. Gysgt. For competency eval, reports drinking approximately 48 or so beers from 2200 until this morning.  Co. Gysgt tried to wake patient at 0230 then every 15 minutes until 1000 when he & two marines brought [him] to B.A.S [where] patient lethargic at first but woke at about 1030.  Patient referred to branch medical clinic for competency evaluation.”

960424:	NJP for violation of UCMJ, Article 86: In that LCpl J_(Applicant) did, on board MCBH, Kaneohe Bay, HI, on or about 960423 without authority fail to go at the time prescribed to his appointed place of duty, to wit: Lima Co.
Violation of UCMJ, Article 134: In that LCpl J_(Applicant), was, on board MCBH, Kaneohe Bay, HI, on or about 960423, as a result wrongful previous overindulgence in intoxicating liquor or drugs incapacitated for the proper performance of his duties.
	Award:  Forfeiture of $238 per month for 1 month, restriction and extra duty for 14 days.  Forfeiture suspended for 6 months.  Not appealed.

960514:	Applicant to unauthorized absence at 0730 on 960514.

960703:	Applicant from unauthorized absence at 1000 on 960703.

960703:	Applicant to confinement.

960827:	Applicant released from confinement.

960827:	Special Court Martial.
		Charge I:  Article 86:
Specification:  Did, on active duty, on or about 14 May 1996, without authority, absent himself from his unit, to wit: Lima Company, 3d Battalion, 3d Marines, located at Marine Corps Base Hawaii, Kaneohe Bay, Hawaii, and did remain so absent until he was apprehended on or about 3 July 1996.  Plea: G.  Finding: G.
Charge II:  Article 112a:
Specification:	Did, on active duty, at Honolulu, Hawaii, from about 4 June 1996 to about 3 July 1996, wrongfully use marijuana.  Plea: G.  Finding: G.
Sentence:  Confinement for a period of four months, forfeiture of $583.00 pay per month for four months, reduction to E-1, and a bad conduct discharge.
CA 961024: The sentence is approved and except for the bad conduct discharge, is ordered executed. However, all confinement in excess of 55 days is suspended for a period of six months from the date of trial, at which time, unless sooner vacated will be remitted without further action
	
960828:	Applicant waived clemency review.

961002:	Applicant to voluntary appellate leave.

961105:	Applicant to involuntary appellate leave.

971208:	NMCCCA:  Affirmed findings and sentence.  

980422:	Appellate review complete.

980424:	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 19980424 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.  The Board applauds the Applicant’s post-service treatment and accomplishments as substantiated by the Applicant’s supporting documents.  However, 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.  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 P1900.16E), 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 86, unauthorized absence for more than 30 days or Article 112a, illegal use of a controlled substance.

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