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USMC | DRB | 2000_Marine | MD00-00416
Original file (MD00-00416.rtf) Auto-classification: Denied


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


ex-Pvt, USMC
Docket No. MD00-00416

Applicant’s Request
The application for discharge review, received 000214, 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 PERSONAL REPRESENTATION as his representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 000928. 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 (verbatim)

 1. My discharge may have been proper however I request that it change to General Under Honorable Conditions for the following reasons:

a. The day of the incedent I was coming off duty and was under medication and regretfully over reacted to the situation.

 b. I was 21 at the time and I'm truly sorry about what happened.
c. I have never been in any type of trouble before this incedent or since. (see attached statement).
2. I truly regret my actions at the time and I request respectfully that my BCD be upgraded to a General.

 3. It has almost been 10 years and I have learned my lesson. Thank you and I am sorry.
Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
Copy of DD Form 214
Letters of Recommendation (2)
 Character Reference Letter (2)
 Letter from applicant.

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: USMC              None
          Inactive: USMCR(J)                871008 - 881003  COG
Period of Service Under Review :
Date of Enlistment: 881004               Date of Discharge: 941123

 Length of Service (years, months, days):

         Active: 06 01 20 (does not exclude confinement)
         Inactive: None

 Age at Entry: 18                          Years Contracted: 4

Education Level: 12                        AFQT: 36

 Highest Rank: LCpl
Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 4.0 (8)                       Conduct: 3.8 (8)
Military Decorations: None

 Unit/Campaign/Service Awards: Rifle Marksmanship Badge, SSDR, NDSM

Days of Unauthorized Absence: 1

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 :

900613:  Summary Court-Martial.
          Charge I: violation of the UCMJ, Article 86 (2 Specifications), .
          Specification 1: Without authority absence himself from his unit, to wit: CommPlt, HQCo, 3dMar, located on board the USS Belleau Wood from 0600, 900406 until 0600, 900407[1day]; Specification 2: Without authority, failed to go at the time prescribe to appointed place of duty, to wit: a man overboard drill formation in the CommPlt area (frame 46-49). Charge II: violation of the UCMJ, Article 91: (2 Specifications), Specification 1: Disobeyed a lawful order from SSgt R.L. W___ III, not to move out of the berthing area on 900424, Specification 2:Disrespectful in language toward SSgt R.L. W___ III, on 900501 by saying to him, "Fuck no, I am a grown man and I can go where I want, when I want and anywhere I desire.” Charge III: violation of the UCMJ, Article 134: Drunk and disorderly on or about 900407..
         Finding: to Charge I and specification 1 thereunder, guilty. To Charge II and specifications 1 and 2 thereunder, guilty. To Charge III and specification 1 thereunder, guilty.
         Sentence: Forfeiture of $270.00, restriction for 14 days, reduced to E-2.
         CA action 900613: Sentence approved and ordered executed.
        
910202:  Special Court-Martial.
         Charge I: violation of the UCMJ, Article 92: Willfully disobeyed the order of Col J.H. A_____, USMC, by wrongfully chambering a round in his M16A service rifle. Charge II: violation of the UCMJ, Article 128: Assault Sgt P.J. C____, USMC, by brandishing at him a dangerous weapon, to wit: a loaded M16A2 service rifle.
         Findings: to Charge I and specification 1 thereunder, guilty. To Charge II and specification 1 thereunder, guilty.
         Sentence: CHL for 6 months, forfeiture of $500.00 pay per month for 6 months, reduction to E-1, and a bad conduct discharge.
         CA 910305: Approved and, with the exception of the BCD, ordered executed, but that part of the sentence extending to all unexecuted confinement is suspended for 12 months from the date of trial, at which time, unless the suspension is sooner vacated, the suspended part of the sentence shall be remitted without further action.
        
910610:  To appellate leave.

930617:  NC&PB denied clemency and restoration.

940606:  NMCCMR: Affirmed findings and sentence.

941123:  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 941123 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 response to applicant’s issues 1-3, r elevant and material facts stated in a court-martial specification are presumed by the NDRB to be established facts. With respect to a discharge or dismissal adjudged by a court-martial case tried under the Uniform Code of Military Justice, the action of the NDRB extends only to a change in the discharge or dismissal for purpose of clemency. The applicant has not provided sufficient documentation of good character and conduct in order for consideration for clemency based on post-service conduct. Relief 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, Article 128, assault.
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      
                  Washington, D.C. 20374-5023     


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