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

Docket No. MD05-01419

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

FOR OFFICIAL USE ONLY

 ex-PVT, USMC
Docket No. MD05-01419

Applicant’s Request

The application for discharge review was received on 20050825.  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 20060517.  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 and from an attached document/letter to the Board:

“I feel that I was immature and under current standards I would not receive the type of discharge I did.”

Under current standards, I would not have received the type of discharge I did.

My conduct and efficiency rating/behavior and proficiency marks were mostly pretty good.

I received awards and decorations.

I received letters of commendation.

My record of promotion showed I was generally a good service member.

I have been a good citizen since discharge.

My record of court martial convictions indicates only isolated or minor offenses.

My record of convictions by civil authorities while I was in service indicates only minor or isolated offenses.

My ability to serve was impaired by my youth and immaturity.

My ability to serve was impaired because of marital and family problems.

Personal problems impaired my ability to serve.

My use of drugs impaired my ability to serve.

Applicant’s Remarks:  (Taken from the attached document/letter to the Board.). 

Dear Sir or Madam:

I, would like to take some time to introduce myself and give a brief description of the events that lead up to my joining the Marine Corps.  My name is M_ A_ C_(applicant), I grew up in Altus Oklahoma and my dream was to go to college and pursue a tennis career.  But before I could even blink a reality came crashing down on me, my girlfriend was pregnant and to top it all off, I was not even sure if the baby was mine, there was a 99.9 % chance that the baby was my best friends’ child.  So, we waited, and in the mean time, I became a drug addict.  And after the child was born we had a paternity test done and that’s when the reality really set in, because that baby was mine and it was time for me to step up, be a “man” and take care of my new family.  I joined the Marines to take care of my family.  While I wasn’t sure that I could get past the fact that my new bride cheated on me, I was sure of one thing, that baby was mine and I loved her more than I loved myself.  So I detoxed off of drugs my first few weeks in boat camp.  And when I graduated boat camp I moved my wife and my beautiful baby girl to California to start our new life.  But I soon learned that I should have followed my heart and not done what my family said was the right thing.  I hated the thought of going home to my wife, I was miserable, so my first solution was to get high, go home, and then I could look at her.  It soon spun out of control all the way around for me.  I lost everything from the Marines to the respect from everyone around me.  I was discharged from the Marines for domestic abuse and for drugs, and while I am a changed person now, I sometimes wonder if I would even know my new wife, if God had not allowed all of those things to happen.  I do know that my ability to serve was impaired by my youth and immaturity; I also believe that my use of drugs impaired my ability to serve, and my marital and family problems impaired my ability to serve.  I have grown from my mistakes, I have a wonderful wife whom supports me in everything that I do and whom I trust with all of my heart, and there is no longer a drug problem in my life.  While there is no excuse for my behavior and my actions I would like to say that I have become a better person.  Therefore I believe that my discharge should be reconsidered.  Thank you sincerely for your time in this matter.

Sincerely,

[signed] M_ A. C_(applicant)

Documentation

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

Applicant’s DD Form 214
Letter from Commanding Officer, Navy and Marine Corps Appellate Leave Activity, Washington, DC dtd December 16, 2003
Special Court Martial Supplemental Order NO 03-2089, dtd December 11, 2003
Letter from D. L. K_, BCNR, dtd July 21, 2006
DD Form 293
DD Form 149
Letter from D_ B. B_, States Representative, dtd May 17, 2005 (2 pgs)
Letter of Recommendation from Attorney at Law B. C_ W_ III, dtd May 9, 2005 (2 pgs)
Reference Letter from A_ C_ (Applicant’s wife) dtd May 30, 2005

PART II - SUMMARY OF SERVICE

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

	Inactive:  USMCR (DEP)	20010319 – 20010416		COG
	Active:    None

Period of Service Under Review:

Date of Enlistment:  20010417		Date of Discharge:  20031216

Length of Service (years, months, days):

Active:    02  07  29  (Does not exclude lost time.)
	Inactive:  None

Time Lost During This Period (days):

	Unauthorized absence:  none
	Confinement:		  30 days

Age at Entry:  20

Years Contracted:  4 

Education Level:  12				AFQT:  39

Highest Rank:  LCpl				MOS:  3052

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  NA*			Conduct:  NA*

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as stated on the DD Form 214):  Rifle Expert Badge, National Defense Service Medal, Certificate of Commendation.

*Not Available

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:

010318:	Applicant briefed on and certified understanding of Marine Corps policy concerning illegal use of drugs.

030130:	Special Court Martial
	Charge I:  violation of the UCMJ, Article 112a.
	Specification:  Did, on or about 021009, wrongfully use methamphetamine. Plea: Guilty.  Finding: Guilty.
	Charge II:  violation of UMCJ, Article 128.
	Specification:  Did, on or about 021111, unlawfully strike L. R. C_, in the eye and chest.  Plea: Guilty.  Finding: Guilty.
	Sentence:  Confinement for 30 days, reduction to E-1, Bad Conduct discharge.
	CA 030508:  The sentence is approved and, except for the bad conduct discharge, ordered executed.  Automatic forfeitures will be waived for a period of six months from the date of this action.
	
030130:	Joined Base Brig, Marine Corps Base, Camp Pendleton, California, for confinement.

030223:	From confinement, restored to full duty. 

030618:	Applicant to appellate leave.

030826:	NMCCCA:  Affirmed findings and sentence.  

031117:	Appellate review complete.

031211:	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 20031216 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).  

The Applicant contends that his problems in the Navy can be attributed to stress caused by his family situation and an unresolved paternity issue. ".  While The Applicant may feel that his family situation and paternity issue was the underlying cause of his misconduct, the record clearly reflects his willful misconduct and demonstrated he was unfit for further service.  The evidence of record did not show that the Applicant was either not responsible for his conduct or that he should not be held accountable for his actions.  Relief denied.

The Applicant stated, “he was immature and under current standards I would not receive the type of discharge I did.”  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 and that the sentence awarded the Applicant at his court-martial was appropriate for the offenses he committed.  Relief denied.

The Applicant requests reconsideration of his discharge. The Applicant contends that he is a changed person now, that he no longer has a drug problem, and is happily married.
The following is provided for the edification of the Applicant.  Normally, to permit relief, a procedural impropriety or inequity must have occurred during the discharge process for the period of enlistment in question.  The Board discovered no impropriety after a review of Applicant’s case.  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 Naval service.  The NDRB 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.  Examples of documentation that should be provided to the Board include proof of educational pursuits, verifiable employment records, documentation of community service, credible evidence of a substance free lifestyle and certification of non-involvement with civil authorities.  As of this time, the Applicant has not provided sufficient post-service documentation for the Board to consider.  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.  The Applicant can provide documentation to support any claims of post-service accomplishments or any additional evidence related to this 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 112a, (wrongful use of a controlled substance) and Article 128, (assault). 

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