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

FOR OFFICIAL USE ONLY

ex-Pvt, USMC
Docket No. MD06-00659

Applicant’s Request

The application for discharge review was received on 20060412.  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 20070201.  After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, the Board determined that clemency was not warranted and that the characterization of discharge was appropriate.  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 - ISSUES AND DOCUMENTATION

Decisional Issues

Clemency:  	Misconduct was due to family issues (father’s health)
		Post-service good behavior

Documentation

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

Applicant’s DD Form 214 (Member 4)
Statement from Applicant, dated November 10, 2005
Letter to J_ P_, Applicant’s father, from Department of Veterans Affairs, dated September 24, 1999
Applicant’s father’s Rating Decision from Department of Veterans Affairs, St. Petersburg Regional Office, dated September 22, 1999
One page from Applicant’s father’s medical record

PART II - SUMMARY OF SERVICE

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

	Inactive:  USMCR (DEP)	19980506 - 19981202	COG
	Active:    None

Period of Service Under Review:

Date of Enlistment:  19981203		Date of Discharge:  20010502

Length of Service (years, months, days):

Active:    02  05  00  (Does not exclude lost time.)
	Inactive:  None

Time Lost During This Period (days):

	Unauthorized absence:  59 days
	Confinement:		  36 days

Age at Entry:  18

Years Contracted:  4

Education Level:  12				AFQT:  42

Highest Rank:  Pvt				MOS:  0311 (Rifleman)

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  3.1 (4)				Conduct:  3.1 (4)

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

990517:	Applicant to unauthorized absence at 0700.

990617:	Applicant from unauthorized absence at 0605 (30 days/surrendered).

990621:	Applicant to unauthorized absence at 0700.

990720:	Applicant from unauthorized absence at 1804 (29 days/surrendered).

990720:	Applicant to confinement.

990827:	Applicant from confinement.

990827:	Special Court Martial:
	Charge I:  Violation of the UCMJ, Article 86.
	Specification 1:  Did, on or about 990517, without authority, absent himself from his organization, and did remain so absent until on or about 990617.  Plea:  Guilty.  Finding:  Guilty.
	Specification 2:  Did, on or about 990621, without authority, absent himself from his organization, and did remain so absent until on or about 990720. Plea:  Guilty.  Finding:  Guilty.
	Sentence:  Confinement for 120 days, forfeiture of $600.00 per month for 3 months, Bad Conduct Discharge.
	CA 000427:  The sentence approved and, except for bad conduct discharge, ordered executed, but the execution of that part of the sentence extending to all confinement in excess of forty-five (45) days is suspended for a period of twelve (12) months from date of trial, at which time, unless sooner vacated, remitted without further action.
	
991004:	Applicant to voluntary appellate leave.

010206:	NMCCCA:  Affirmed findings and sentence as approved on review below.  

010427:	Appellate review complete.

010502:	SSPCMO 01-582:  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 20010502 with a bad conduct discharge per the sentence adjudged by a properly convened special court-martial.  That sentence was subsequently approved by the convening authority and affirmed by 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 found no evidence in the record to support the Applicant’s claim that the circumstances of his father’s illness compelled his periods of unauthorized absence.  The Board noted that, contrary to his statement to the Board, the Applicant denied at his court-martial that his father was the cause or reason for unauthorized absences.  The military judge asked the Applicant whether his absences were “caused or extended by physical disability or medical disability of any family or loved one,” and if he was “compelled to stay (in an unauthorized absence status) because of imminent death or anything with [his] father.”  The Applicant’s testified under oath that his “father was sick at the time, but that’s not why.  I wasn’t held back because of him.”  The Applicant’s subsequent regret regarding the consequences of his own willful misconduct does not provide a basis for clemency; therefore, relief is not warranted.

Regulations limit the Board’s review, in Bad Conduct Discharge cases, to a determination of whether clemency is warranted.  The Board has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities.  The Applicant’s stated desire to “join a local police force or government agency” does not form a basis upon which relief may be granted.

The following is provided for the edification of the Applicant.  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 regarding post-service accomplishments 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 any post-service documentation to consider mitigating the misconduct that resulted in the characterization of discharge.  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 P1900.16E), effective 950818 until 010831. 

B.  The Manual for Courts-Martial authorizes the award of a Bad Conduct Discharge as part of the sentence upon conviction by a special or general court-martial for violation of 2 or more offenses under the UCMJ for none of which a punitive discharge is otherwise authorized but for which the authorized confinement for these offenses totals 6 months or more.

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 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