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

FOR OFFICIAL USE ONLY

ex-Pvt, USMC
Docket No. MD06-00661

Applicant’s Request

The application for discharge review was received on 20060414.  The Applicant requests that 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 20070125.  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:

No decisional issues were submitted by the Applicant.

Documentation

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

Applicant’s DD Form 214 (Member 4)

PART II - SUMMARY OF SERVICE

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

	Inactive:  USMCR (DEP)	19951122 - 19960917	COG
	Active:    None

Period of Service Under Review:

Date of Enlistment:  19960918		Date of Discharge:  20020724

Length of Service (years, months, days):

Active:    05 10 06 (Does not exclude lost time.)
	Inactive:  None

Time Lost During This Period (days):

	Unauthorized absence:  254 days
	Confinement:		  53 days

Age at Entry:  19

Years Contracted:  4 

Education Level:  12				AFQT:  *

Highest Rank:  LCpl				MOS:  1142

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  3.7 (7) 			Conduct:  2.8 (7) 

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

* AFQT not legible in the Service Record.

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:

971202:	Counseling:  Advised of deficiencies in performance and conduct (On 4 November 1997, you received a DUI on base with a BAC of .06), necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued

980402:	NJP for violation of UCMJ, Article 92:  Failed to obey BO P5560.2k, by wrongfully driving on base revocation for a prior DUI.
	Award: Correctional Custody Unit for 7 days.  Not appealed.

980713:	Applicant to unauthorized absence on 980713.

981222:	Applicant from unauthorized absence on 981222 (162 days).

990206:	Counseling:  Advised of deficiencies in performance and conduct due to Summary Court Martial (Violation of Article 86, unauthorized absence on or about 980713 until 981222; failure to maintain high standards of professional and personal performance/conduct expected of a Marine), necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

991010:	Applicant to unauthorized absence at 0630 on 991010.

991028:	Applicant from unauthorized absence to IHCA at 1559 on 991028 .

000111:	Applicant released from IHCA to military control (92 days UA/IHCA).

000111:	Applicant to pretrial confinement.

000202:	Charges preferred for violation of the Uniform Code of Military Justice (UCMJ) Article 86:  Unauthorized absence (UA) from 10 October 1999 to 19 January 2000.

000215:	Charges referred to special court-martial. 

000305:	Applicant from pretrial confinement (55 days).

000306:	Special Court Martial 
	Charge I:  violation of the UCMJ, Article 86, did on or about 10 October 1999, without authority absent himself from his organization, and id remain so absent until he was apprehended on or about 19 January 2000.   
	Plea: Guilty.
	Finding: Guilty, except for the figure “10”, substituting therefor the figure “11”; except for the words, “he was apprehended,” and, except for the figure “19”, in the last line; substituting therefor, the number “11”.  Of the excepted words and figures: Not Guilty.  Of substituted figures: Guilty.  Of the specification as excepted and substituted: Guilty.
	Sentence:  Bad Conduct Discharge, 45 days confinement, and forfeiture of $100.00  per month for 2 months.
	CA 000830:  In accordance with the terms of the pre-trial agreement, the sentence approved and ordered executed, except for bad conduct discharge.
	SA:  see SSPCMO.

000317:	Applicant to appellate leave.

010208:	NC&PB clemency not granted; restoration denied.

010913:	Appellate review complete.

011005:	NMCCCA:  Affirmed findings and sentence.  

020724:	SSPCMO:  Article 71c, UCMJ, having been complied with, Bad Conduct discharge ordered executed.

Service Record was missing elements of the Summary of Service.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20020724 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 did not submit decisional issues for the Board’s consideration.

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

For the edification of the Applicant, the Board has no authority to upgrade a discharge for the sole purpose of enhancing employment.  Regulations limit the Board’s review to a determination of the propriety and equity of the discharge.  Also, the NDRB has no jurisdiction over reenlistment, reentry, or reinstatement into the Navy, Marine Corps, or any other of the Armed Forces.  The NDRB is not authorized to change a reenlistment code.  Neither a less than fully honorable discharge nor an unfavorable "RE" code is, in itself, a bar to reenlistment.  A request for a waiver is normally done only during the processing of a formal application for enlistment through a recruiter.  

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 86, unauthorized absence for more than 30 days.

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