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

FOR OFFICIAL USE ONLY

ex-Pvt, USMC
Docket No. MD06-00502

Applicant’s Request

The application for discharge review was received on 20060222.  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 20061130.  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 characterization 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

Decisional Issues

1.  Equity/In Service: Prior Good Service
2.  Equity/ Post Service

Documentation

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

Letter from Applicant, dtd November 5, 2005 (2 pages)
Applicant’s DD Form 214 (Member 4)
Employment Verification ltr from K_ V_, Petroleum Service Corporation, dtd November 28, 2005
Certificate of Record Search, dtd January 30, 2006

PART II - SUMMARY OF SERVICE

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

	Inactive: USMCR (DEP)	19861104 - 19870316	COG
	Active:   USMC	19870317 - 19910516	HON
	Active:   USMC	19910517 – 19930805	HON
	Active:   USMC	19930806 – 19970701	HON

Period of Service Under Review:

Date of Enlistment:  19970702		Date of Discharge:  20050318

Length of Service (years, months, days):

Active:    07  08  16  (Does not exclude lost time.)
	Inactive:  None

Time Lost During This Period (days):

	Unauthorized absence:  8 days
	Confinement:		  24 days

Age at Entry:  35

Years Contracted:  4 (1 month extension)

Education Level:  13				AFQT:  74

Highest Rank:  SSgt				MOS:  6046/0847

Final Enlisted Performance Evaluation Averages (number of marks): Enlisted performance reports were available to the Board for review.

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as stated on the DD Form 214):  Rifle Marksman Badge, Pistol Marksman Badge, Combat Action Ribbon, Marine Corps Good Conduct Medal (4), Sea Service Deployment Ribbon (2), Kuwait Liberation Medal (Kuwait), Kuwait Liberation Medal (Saudi Arabia), Southwest Asia Service Medal (3), National Defense Service Medal (2), Navy Meritorious Unit Commendation (2), Navy Unit Commendation, Certificate of Commendation (Individual award), Letter of Commendation

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:

970702:	Reenlisted this date for a term of 4 years.

000320:	Counseling:  Advised of deficiencies in performance and conduct (lack of maturity, professionalism, and poor judgement in complying with military regulations and directives and unauthorized absence), necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.  Applicant chose to make a rebuttal.  

000321:	Applicant’s rebuttal page 11 entry.

000821:	NJP for violation of UCMJ, Article 86: Did at MCAS Miramar on 000727, absent himself from his appointed place of duty without authority between 0731, 27 July thru 0729 000731.
	Violation of UCMJ, Article 107: SNM behaved and made statements with a specific intent to mislead superiors away from the truth.
	Award:  45 days restriction served as SDO, every other day for 45 days of duty.  Not appealed.

010109:	Applicant’s rebuttal page 11 entry.

010319:	Applicant advised of the Veterans Administrative Hospital/Facility, which can provide appropriate treatment nearest Applicant’s home of record.  I was offered every opportunity to avail myself of treatment, I refuse all medial rehabilitation.

010531:	Counseling:  Advised of deficiencies in performance and conduct (Violation of UCMJ Article 86 on several occasions between 001227 and 010105), necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.  Applicant chose to make a rebuttal.

010606:	Applicant’s rebuttal page 11 entry.

010703:	NAVDRUGLAB, SAN DIEGO, CA, reported Applicant’s urine sample, received 010629, tested positive for THC.

010901:	Counseling:  Advised of deficiencies in performance and conduct (NJP on 000821 for article 86), necessary corrective actions explained, sources of assistance provided.

011116:	Special Court Martial [trial dates 010914, 011031; 011115-011116]
	Charge I:  violation of the UCMJ, Article 86, (2 specifications).
	Specification 1:  In that Staff Sergeant D_ V. B_ (Applicant), U.S. Marine Corps, on active duty, did, on or about 001227, without authority, absent himself from his unit, to wit: Marine All Weather Fighter Attack Squadron 242, Marine Aircraft Group 11, located at Marine Corps Air Station Miramar, and did remain so absent until on or about 001229, [2 days]. Plea: Guilty.  Finding: Guilty.
	Specification 2: In that Staff Sergeant D_ V. B_, U.S. Marine Corps, on active duty, did, on or about 010103, without authority, absent himself from his unit, to wit: Marine All Weather Fighter Attack Squadron 242, Marine Aircraft Group 11, located at Marine Corps Air Station Miramar, and did remain so absent until on or about 010105, [3 days].  Plea: Guilty.  Finding: Guilty.
	Charge II:  violation of UMCJ, Article 112a.
	Specification:  In that Staff Sergeant D_ V. B_, U.S. Marine Corps, on active duty, did, on or about 010628, wrongfully use marijuana (THC), a controlled substance.  Plea: Not Guilty.  Finding: Guilty.
	Sentence:  Confinement for 30 days, reduction to E-1, Bad Conduct discharge.
	CA 020322:  The sentence is approved and, except for that part of the sentence extending to a bad conduct discharge, will be executed.
	
020326:	Applicant ordered to involuntary appellate leave.

040928:	NMCCCA:  Affirmed findings and sentence.  

050315:	USCAAF:  Petition for review denied

050316:	Appellate review complete.

050316:	SSPCMO:  Article 71c, UCMJ, having been complied with, Bad Conduct discharge ordered executed.

051130:	Applicant discharged.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20050318 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 Board presumed regularity in the conduct of governmental affairs (D).

In response to the Applicant’s issues, 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 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 (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.

D.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part II, Para 211, Regularity of Government Affairs.  

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 Instruction 1332.28, you may submit a complaint in accordance with Enclosure (5) of that Instruction.  You should read Enclosure (5) of the Instruction 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 Instruction 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