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USMC | DRB | 1999_Marine | MD99-00825 (5)
Original file (MD99-00825 (5).rtf) Auto-classification: Denied


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

ex-PVT, USMC
Docket No. MD99-00825

Applicant’s Request
The application for discharge review, received 990525, requested that the characterization of service on the discharge be changed to general/under honorable conditions. The applicant requested a documentary record discharge review. The applicant did not list any representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 000403. After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, NDRB discerned no impropriety or inequity in the characterization of the applicant’s service. The Board’s vote was unanimous that the character of the discharge shall not change. The discharge shall remain: BAD CONDUCT DISCHARGE/As a result of a courts-martial (SPCM) – Other, authority: MARCORSEPMAN Par. 1105.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

1.       My lawyer advised me to try the Good of the Service Discharge, because it was done through paperwork, he saw no reason why I'd be denied. Three months later the General Service Discharge paperwork came back and it was approved, but then someone mislead the paperwork and it ended up being disapproved. My lawyer said I got a bad deal. So we went to Special Court Martial. It was a Friday and by the time court was over it was after 6'oclock and it was too late to go to the brig, so a week later I went to the brig. Staff Sgt H____ and even the Sgt Major of Separation Company said it was dumb for me to go to the brig when in two weeks I'd be back at Separations. The Major was on vacation, if the major was in his office I probably would have stayed at Separation, but the captain didn't see it that way. Two weeks later I was back at Separation Company on my way back home to Montana.
2.       Now at age 32, and being a father, my discharge is important to help me better myself and possibly help me seek employment for some companies here where I live. There are two main companies I am interested in working for and if my discharge is changed to good, I would have a way better chance in getting employment from them. I had know idea my Military Status would affect my employment, but Veterans have first come first serve basis. Even when I turned myself in I still maintained being a good Marine. Even today I still maintain those ethic and honor in my everyday life. It would certainly be appreciated if you would consider upgrading my discharge. Thank you for your time.
 Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
Copy of Special Court Martial action
Copy of DD Form 214
Copy of Modification of Appellate Leave Orders

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: USMC              None
         Inactive: USMCR(J)                861105 - 870209  COG

 Period of Service Under Review :
Date of Enlistment: 870210               Date of Discharge: 900118

 Length of Service (years, months, days):

         Active: 01 04 19
         Inactive: None

 Age at Entry: 20                          Years Contracted: 4

Education Level: 12                        AFQT: 49

 Highest Rank: PFC

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 4.5 (2)                       Conduct: 4.4 (2)

 Military Decorations: None

 Unit/Campaign/Service Awards: Rifle Sharpshooter Badge

Days of Unauthorized Absence: 533

Character, Narrative Reason, and Authority of Discharge (at time of issuance):

BAD CONDUCT DISCHARGE/As a result of a courts-martial (SPCM) - Other, authority: MARCORSEPMAN Par. 1105.

 Chronological Listing of Significant Service Events :

870922:  Applicant declared a deserter on 870922 having been an unauthorized absentee since 0100,870822 from 9 TH MEB.

890206:  Applicant surrendered to military authorities on 890206 (1219) at MCB CamPen CA. Returned to military control 890206. Transferred to SEPSCO HQBN MCB CAMPEN.

890317:  Special Court-Martial.
         Charge I: violation of the UCMJ, Article 86: UA from 870822 to 890206 (533days/S).
         Findings: to Charge I and specification 1 thereunder, guilty.
         Sentence: Confined for 1 months, forfeiture of $200.00, restriction for 1 month, reduction to E-1, and a bad conduct discharge.
         CA 890510: Only so much of the sentence as provides for a BCD, 30 days confinement, forfeiture of $200.00 pay per month for one month is approved and, except for the BCD, ordered executed.
        
890323:  To confinement, Sentence of SPCM.

890409:  From confinement, awaiting appellate leave.

890411:  Applicant waived clemency review.

890425:  To appellate leave.

890816:  NMCCMR: Affirmed findings and sentence.

891218:  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 900118 with a bad conduct discharge which was the sentence adjudged by a properly constituted special court martial that was determined to be legal and proper, affirmed in the legal chain of review and executed (A and B). The Board presumed regularity in the conduct of governmental affairs (C). After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, the Board found that the discharge was proper and equitable (D and E).

In the applicant’s issue 1, the Board found that the information he provided discussed administrative matters about why he should or should not have been sent to the brig, but doesn’t address why he was in an unauthorized absence status for 533 days. In the applicant’s case, his misconduct clearly demonstrates that the character of his service was appropriately awarded – bad conduct discharge. This discharge was affirmed in appellate review and was properly administered. The Board has no authority to upgrade a discharge for the sole purpose of enhancing employment opportunities. To the applicant’s credit, he acknowledged responsibility for his actions. His desire to find gainful employment in order to provide for his family is commendable. Unfortunately, such matters do not form a foundation upon which the Board grants relief. Relief is denied.

 Pertinent Regulation/Law (at time of discharge)

 A. Paragraph 1105, DISCHARGE ADJUDGED BY SENTENCE OF COURTS-MARTIAL , of the Marine Corps Separation and Retirement Manual, (MCO P1900.16D), effective 27 Jun 89 until 17 Aug 95.

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.

C. Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 2, AUTHORITY/POLICY FOR DEPARTMENTAL DISCHARGE REVIEW.

D. Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 9, paragraph 9.2, PROPRIETY OF THE DISCHARGE.

E. Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 9, paragraph 9.3, EQUITY OF THE DISCHARGE.

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 obtain a copy of DoD Directive 1332.28 by writing to:
                  DA Military Review Boards Agency
                  Management Information and Support Directorate
                  Armed Forces Reading Room
                  Washington, D.C. 20310-1809

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:

                  Naval Council of Personnel Boards
                  Attn: Naval Discharge Review Board
                  Washington Navy Yard
                  720 Kennon Street SE Rm 309
                  Washington, D.C. 20374-5023     


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