Search Decisions

Decision Text

USMC | DRB | 1999_Marine | MD99-01225
Original file (MD99-01225.rtf) Auto-classification: Denied


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

ex-PVT, USMC
Docket No. MD99-01225

Applicant’s Request
The application for discharge review, received 990910, 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 listed VETERANS OF FOREIGN WARS as his representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 000525. 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. However, the Board determined that clemency is warranted in this case based upon a review of the member’s complete record, specifically including post-service conduct. The vote was 4 to 1 that the character of the discharge shall change. The discharge shall change to: UNDER OTHER THAN HONORABLE CONDITIONS/As a result of a courts-martial (SPCM) – Other, authority: MARCORSEPMAN Par. 1105.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

 1. Veteran somelny request his discharge be upgraded to a minimum of general under honorable because at the time of his court-martial and for a period before he absented himself without leave, the veteran requested both emergency and regular leave about 3 or 4 times due to the failing health of his father and decline of his family's business. He was denied this leave and the veteran was under so much pressure that it was important enough for the veteran to go UA in support of his father and family.

2. Veteran has since graduated from college and has an exemplary record as a civilian. Veteran has no police record nor has he had any trouble with the law. In fact he has volunteered numerous hours to two police departments and wishes to become a police officer himself. Please see attached letter from the city of Miami Beach, at which time he became a committee member for the Boy Scouts of America.

3. Since veteran (while on UA) was in contact with his unit it clearly shows that this veteran let them know where he was at all times and did not try to run an hide but he may have known he was wrong but showed amipbicle remorse at all times. This veteran has paid his debt to society and should be given the benefit of the dout (38 CFR) and has shown that he is an asset to society rather than a liability.

4.       Veteran by attached letters clearly shows that the preponderance of the stated evidence would in fact excell if he was in the USMC now. Veteran's request are based on pure fact and he should be granted a second chance so he might receive his VA benefits (hospitalization, appointment, medication, etc). Veteran request this upgrade so he may also seek gainful employment which he may be refused if not granted. It will serve no justice to keep a credit to society such as this veteran if not granted his request.
5. USMC accepted veteran prior to becoming U.S. Citizen and was pushed through enlistment/basic training at the age of 17. His recruited was not present nor were his parents to sign consent.


 Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
Copy of DD Form 214
Copy of Letter of Recommendation from LTC (Ret) U.S. Army Senior Army Instructor
Copies of Reference Letter (3)
Transcript from Advance Therapeutic Massage Training Program
Copy of Certificate of Naturalization


PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: USMC              None
         Inactive: USMCR(J)                870130 - 871101  COG

 Period of Service Under Review :
Date of Enlistment: 871102               Date of Discharge: 911028

 Length of Service (years, months, days):

         Active: 03 11 26 (incl UA time)
         Inactive: None

 Age at Entry: 17                          Years Contracted: 4

Education Level: 12                        AFQT: 73

 Highest Rank: PFC

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 4.3 (3)                       Conduct: 3.2 (4)

 Military Decorations: None

 Unit/Campaign/Service Awards: Rifle Sharpshooter Badge, NDSM

Days of Unauthorized Absence: 964 (exclude confinement)

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 :

880501:  To UA.

880524:  From UA.

880806:  Applicant declared a deserter on 880705 having been an unauthorized absentee since 880705, from 3dBn 8thMar 2dMarDiv FMF CamLej, NC.

910214:  Applicant apprehended by civil authorities on 910214 (0810). Returned to military control 910215.

910214:  Pretrial confinement 910214 to 910314 credited toward the period of confinement approved.

910314:  Special Court-Martial.
         Charge I: violation of the UCMJ, Article 86: Without authority absent himself from his unit from 880705 to 910214 (940days/UA).
         Findings: to Charge I and specification 1 thereunder, guilty.
         Sentence: Confinement for 2 months, forfeiture of $500.00 pay per month for 2 months, reduction to E-1, and a bad conduct discharge.
         CA 910722: Sentence approved and, with the exception of the bad conduct discharge, will be executed. That part of the sentence extending to confinement in excess of 28 days is suspended for a period of six months from the date of trial, at which time, unless sooner vacated, the suspended part of the sentence shall be remitted without further action.

910314:  Applicant waived clemency review.

910314:  Applicant waived appellate review by NMCCMR.

910821:  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 911028 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, circumstances unique to this case, and the applicant’s post service contributions to society, the Board grants clemency (D and E).

The Board grants partial relief based on the applicant’s issues 1 and 2. In issue 3, the Board found no evidence that the applicant was in contact with his unit during his period of 940 days UA, as he indicated. In issue 4, the Board does not grant relief solely so the applicant can utilize his V.A. benefits or for seeking better employment opportunities. In the applicant’s issue 5, the Board found that his parents had consented to his enlistment as indicated by their signatures on the DD Form 1966/6. Citizens of foreign countries are eligible to serve in the armed services, contrary to the applicant’s allegation. Partial relief granted.

The applicant is reminded that he is entitled to a personal appearance hearing within 15 years from the date of his discharge. Additional post-service documentation will be necessary for the discharge to be upgraded further.
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, Article [ e.g., Article 86, unauthorized absence for more than 30 days].
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     


Similar Decisions

  • USMC | DRB | 2003_Marine | MD03-00957

    Original file (MD03-00957.rtf) Auto-classification: Denied

    MD03-00957 Applicant’s Request The application for discharge review was received on 20030505. I’m requesting an upgrade on a Bad Conduct Discharge I received back in March of 1990. Sentence: Bad conduct discharge.

  • USMC | DRB | 2000_Marine | MD00-00953

    Original file (MD00-00953.rtf) Auto-classification: Denied

    (Equity Issue) Pursuant to 10 USC 874 (b) (UCMJ, Article 74) and in accordance with SECNAVINST 5420.174C, enclosure (1), paragraph 2.24 and 9.3, this former member requests the Board's clemency relief with upgrade of his characterization of service to under honorable conditions on the basis of his post-service conduct. (B, art IV) In the applicant’s issue, the Board found that while he requests clemency on the basis of his post-service conduct, there is no documentation to provide the Board...

  • USMC | DRB | 2001_Marine | MD01-00075

    Original file (MD01-00075.rtf) Auto-classification: Denied

    960206: 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 960208 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 NDRB is authorized to consider outstanding post-service...

  • USMC | DRB | 2003_Marine | MD03-00811

    Original file (MD03-00811.rtf) Auto-classification: Denied

    PART I - APPLICANT’S ISSUES AND DOCUMENTATION PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW Discussion The Applicant was discharged on 19960925 with a bad conduct discharge which was the sentence adjudged by a properly convened special court-martial. 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...

  • USMC | DRB | 2003_Marine | MD03-00057

    Original file (MD03-00057.rtf) Auto-classification: Denied

    PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW Discussion The Applicant was discharged on 19970128 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 by appellate review authority and executed (A and 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...

  • USMC | DRB | 2003_Marine | MD03-01486

    Original file (MD03-01486.rtf) Auto-classification: Denied

    Equity Issue: Based on our review of the evidentiary record and in accordance with 10 USC 874 (b) (UCMJ, Article 74) and SECNAVINST 5420.174C, enclosure (1), paragraphs 2.24 and 9.3, we request on behalf of this former member the Board’s clemency relief with up-grade of his characterization of service on the basis of his post-service conduct. ________________________________________________________________________In accordance with 32 C.F.R., section 724.166, and SECNAVINST 5420.174C,...

  • USMC | DRB | 2002_Marine | MD02-00511

    Original file (MD02-00511.rtf) Auto-classification: Denied

    PART I - APPLICANT’S ISSUES AND DOCUMENTATION Semper Fi Documentation In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:DD Form 180 Copy of DD Form 214Eighteen pages from Applicant's service record PART II - SUMMARY OF SERVICE Prior Service (component, dates of service, type of discharge): Active: USMC 911029 - 951028 HON Inactive: USMCR(J) 910618 - 911028 COG Period of Service Under Review :Date of Enlistment: 960213 Date...

  • USMC | DRB | 2002_Marine | MD02-00178

    Original file (MD02-00178.rtf) Auto-classification: Denied

    Since leaving the Marine Corps, I have been an honorable member of society, have maintained a clean record, have been employed at the same company since 1996, and am active in church and civic activities. (Issues from Attorney's Brief): Applicant warrants an upgrade to his discharge for the following reasons: While on active duty, he had a clean record, good pro/con marks, had received a Good Conduct Medal, and was just over two months shy of the end of his enlistment at the time he was...

  • USMC | DRB | 1999_Marine | MD99-00825

    Original file (MD99-00825.rtf) Auto-classification: Denied

    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. 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,...

  • USMC | DRB | 1999_Marine | MD99-00825 (5)

    Original file (MD99-00825 (5).rtf) Auto-classification: Denied

    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. 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,...