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USMC | DRB | 2000_Marine | MD00-00795
Original file (MD00-00795.rtf) Auto-classification: Denied


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

ex-Pvt, USMC
Docket No. MD00-00795

Applicant’s Request
The application for discharge review, received 000607, requested that the characterization of service on the discharge be changed to honorable. The applicant requested a documentary record discharge review. The applicant listed the Veterans Service Bureau, State Department of Veterans Affairs as his representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 001214. 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. The equity issues applicant has four (4) years active military services.

In mitigation I contend that my discharge I received is not proper or equitable.

I also believe that I was not afforded proper legal counsel.

I feel that my discharge was unfair because I was promoted to Private and to Lance Corporal and was eligible for the good conduct medal.

I am currently employed and my life stable.

Although the applicant acquiesced in the administrative discharge process the applicant discharge do not reflect the substantially honorable, service the applicant gave to the United States Marine Corp.

The applicant warrant recharacterization of his discharge to fully honorable as matter of equality.

The applicant served on active duty for forty seven months (47) term of service.


 Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
Statement from the applicant
Statement in support of upgrade from representative
Copy of current eligibility status from Department of Veterans Affairs, State of Wisconsin

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
         Inactive: USMCR(J)                921113 - 930419  COG

 Period of Service Under Review :
Date of Enlistment: 930420               Date of Discharge: 970709

 Length of Service (years, months, days):

         Active: 04 02 20
         Inactive: None

 Age at Entry: 18                          Years Contracted: 4

 Education Level: 12                        AFQT: 54

 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: NDSM, SSDR

 Days of Unauthorized Absence: 103

 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 :

960711:  Special Court-Martial.
         Charge I: violation of the UCMJ, Article 86 (2 specifications):
         Specification 1: Absent from his unit on 0731, 8Dec95 to 0730, 10Jan96 (33 days/surrendered).
         Specification 2: Absent from his unit on 0731, 1Mar96 to 1800, 10May96 (70 days/apprehended).
         Findings: to Charge I and specifications thereunder, guilty.
         Sentence: Confinement for 80 days, reduction to Pvt, and a bad conduct discharge.
         CA 960711: Sentence approved and ordered executed except for the BCD, but the execution of that part of the sentence extending to all confinement in excess of 60 days is suspended for a period of 12 months.

960711:  Applicant waived clemency review.

961223:  To appellate leave.

970415:  NMCCMR: Affirmed findings and sentence.

970709:  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 970709 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).

 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. (B, Part IV) The applicant's case was considered under the pertinent standards of equity to determine if any factors in this particular case merited clemency. The NDRB found the applicant’s service record devoid of any mitigating or extenuating factors sufficient to offset the seriousness of the offenses for which the discharge was awarded. Relief denied.

The NDRB is authorized to consider post-service factors in the recharacterization of a discharge (D). However, there is no law or regulation that 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 be found to have existed during the period of enlistment in question. No such error or injustice is evident in the applicant’s service record. Relief denied.

In the applicant’s issues, the Board found the applicant’s statement that he was not afforded proper legal counsel contradicted by his signature in his hand executed on 2 July, 1996, on the Special Court-Martial Memorandum of Pre-Trial Agreement, paragraph 3, stating, “I am satisfied with my Defense lawyer and consider him qualified to represent me.” Further, during the court-martial, the Military Judge offered the applicant the opportunity to request additional or alternative defense counsel and the applicant refused the opportunity. Relief denied.

The Board disagrees with the applicant’s assertion that his discharge was unfair. The facts of the applicant’s promotion to Lance Corporal and that the nature of his service prior to the offenses of which he was convicted in a court-martial would have merited award of the Good Conduct Medal are not contested. However, the offenses to which he plead guilty are not consistent with good order and discipline nor do they reflect honorable Marine Corps service.

The following is provided for the applicant’s edification. The NDRB is authorized to consider 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. In determining whether a case merits a change based on post-service conduct, the NDRB considers the length of time since discharge, the applicant's record of community service, employment, conduct, educational achievements, and family relationships. The applicant's efforts need to be more encompassing than those provided. The applicant should have produced evidence of continuing educational pursuits, a verifiable employment record, documentation of community service, certification of non-involvement with civil authorities and proof of his not using drugs in order for consideration for clemency based on post-service conduct. At this time the applicant has not provided sufficient documentation of good character and conduct. Therefore no relief will be granted. The applicant is reminded that he remains eligible for a personal appearance hearing provided that an application is received within 15 years from the date of discharge.

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 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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