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USMC | DRB | 2000_Marine | MD00-00164
Original file (MD00-00164.rtf) Auto-classification: Denied


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

ex-PVT, USMC
Docket No. MD00-00164

Applicant’s Request
The application for discharge review, received 991108, requested that the characterization of service on the discharge be changed to honorable. 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 000727. 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/COURT-MARTIAL, authority: MARCORSEPMAN Par. 1105.




PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

 1. I had applied or tried to apply for a compassionate reassignment, but was told to forget about it and so warrants an upgrade to Honorable …When I reported in at the 8 th Marine on 5/12/93 I immediately told my senior NCO'S that my wife was 7 months pregnant. I wished for a reassignment to Kings Bay Georgia to be closer to her because she was pregnant and would need my help raising our baby. I then started a packet to submit for this. When I attempted to turn in my request and supporting documents I was told to forget it, it would never happen. I continued to ask my command for help because my wife was having problems and need me to help. We also began to have marital problems due to all of this stress. By the time my son was born my wife threatening divorce and gave me custody of my son. I presented this problem to my command and asked for help again. Once again I was told to forget about it and was even told by a senior NCO to put my son up for adoption. At that point in time I decided my only option was to go UA to save my marriage and to properly provide for my infant son. I was able to accomplish this and turned my self in. When I returned to my command and realized that nothing was going to be done about situation, I became frustrated and went UA second time. I realize my mistake and returned quickly. I realize my mistakes now and wish I had done things differently but at the time I was in a tough situation and thought it was my only option.

2. My ability to serve was impaired because of my marital and family problems and so warrants an upgrade to Honorable due to reasons stated above in item (1).

3. My ability to serve was impaired by youth and immaturity and so warrants an upgrade to Honorable because I was unable to realize the impact this would have on my future and the future of my family.

4. My conduct and efficiency rating and proficiency marks were mostly good and so warrants upgrade to Honorable because I my average pro and con marks for my enlistment were 4.3 and 4.5.

5. I received letters of commendation and so warrants an upgrade to Honorable because they show my dedication to my command and community.

6. My record of promotion showed I was generally a good service member and so warrants an upgrade to Honorable.

7. I have been a good citizen since my discharge and so warrants an upgrade to Honorable because I have served my community, my church, my family, and friends well. I have not been in trouble with the law I any way and only wish to contribute to my family and country.

 Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
Copies of DD Form 214 (3)
Copies from service record (20pgs)
Copy of Joint Duty Recommendation.
Copy of Memorandum from Naval Hospital Jacksonville, FL
Copy of Separation Request Letter.
Letter from applicant's wife (2pgs)
Letter from applicant's wife
Letter from wife's brother.
Letter from applicant's parents
Letter from wife's parents (2)
Copy of Lance Corporal Certificate
Copy of MOS 0341 Mortarman Certificate.
Copy of Basic Security Guard Certificate.
Copy of Letter of Appreciation
Copy of Certificate of Appreciation (School of Infantry).
Copy of Certificate of Completion for Personal Finance.
Copy of Certificate of Completion for M224 60MM Crewman
Copy of Certificate of Completion for M252 81MM Mortar Crewman

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: USMC              None
         Inactive: USMCR(J)                900423 - 910123  COG

 Period of Service Under Review :
Date of Enlistment: 910124               Date of Discharge: 951128

 Length of Service (years, months, days):

         Active: 04 02 16
         Inactive: None

 Age at Entry: 19                          Years Contracted: 4

Education Level: 12                        AFQT: 46

 Highest Rank: LCpl

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 4.2 (8)                       Conduct: 4.1 (8)

 Military Decorations: None

 Unit/Campaign/Service Awards: Rifle Sharpshooter Badge, NDSM, OSR, LOA (2)

Days of Unauthorized Absence: 181 (excl confinement)

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 :

921211:  Counseled for deficiencies in performance and conduct. [Failure to properly follow and fully carry out verbal orders of NCO's in your chain of command.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

930901:  To UA.

931001:  Dropped from roll declared a deserter.

940209:  Applicant surrendered to military authorities on 940209 (0040) at 2d Bn, 8 th Mar, 2d MarDiv. Returned to military control 940209.

940321:  To UA.

940412:  From UA. Surrendered.
        
940412:  Pre-trial confinement from 940412 to 930526 (45 days) credited toward the period of confinement approved.

940527:  Special Court-Martial.
         Charge I: violation of the UCMJ, Article 86 (2 Specifications):
         Specification 1: Unauthorized Absence from his unit 930901-940209 [159days/S]
         Specification 2: Unauthorized absence from his unit 940321-940412 [22days/S].
         Findings: to Charge I and specifications 1 and 2 thereunder, guilty.
         Sentence: Confinement for 60 days, reduction to E-1, and a bad conduct discharge.
         CA 941027: Sentence approved and ordered executed except for the BCD.
        
940527:  To confinement, Sentence of SPCM.

940531:  From confinement, to duty.

940606:  To appellate leave.

950118:  NC&PB: No clemency granted.

950210:  NMCCMA: Affirmed findings and sentence.

951116:  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 951128 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 issues 1 and 2, the Board acknowledged the problems that his wife was having with her pregnancy and thereafter. However, at the applicant’s Court-Martial he testified that this was not life threatening. The applicant chose to go UA and to remain in this status for 6 months. Relief denied.

In addition, issue 3, the Board found that the applicant’s age, education level, and test scores qualified him for enlistment. While he may feel that his immaturity was a factor that contributed to his action, the record clearly reflects his willful disregard for the requirements of military discipline and demonstrated that he was unfit for further service. The record is devoid of evidence that the applicant was not responsible for his conduct or that he should not be accountable for his actions. Relief denied.

Issue 4 is incorrect. The applicant’s average proficiency and conduct marks were 4.2/4.1 respectively. Regardless of the averages, he was convicted at a Special Court-Martial that ordered a BCD. Relief denied.

Issues 5 and 6 are without merit. The applicant’s commendatory letters and his generally good service are irrelevant to the facts and circumstances surrounding his discharge. Relief denied.

 The NDRB is authorized to consider post-service factors in the recharacterization of a discharge (E). The applicant must be aware that 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 the civilian life subsequent to leaving the service. Normally, to permit relief, an error or injustice must have been found to have existed during the period of enlistment in question. Outstanding post-service conduct, to the extent that such matters provide a basis for a more thorough understanding of the applicant’s performance and conduct during the period of service under review, may be considered by the NDRB. The applicant states that he is involved in the community and church but has provided no documentation to substantiate this. Documentation is required for the Board to consider upgrading for post-service conduct. The applicant is reminded that he is eligible for a personal appearance hearing provided the application is received within 15 years from the date of discharge. Representation at personal appearance hearing is highly recommended.


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 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 [ 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 view DoD Directive 1332.28 and other Decisional Documents by going online at “ afls14.jag.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:

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


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