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USMC | DRB | 2000_Marine | MD00-01066
Original file (MD00-01066.rtf) Auto-classification: Denied


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

ex-PVT, USMC
Docket No. MD00-01066

Applicant’s Request
The application for discharge review, received 000915, 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. on010601. 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 (verbatim)

 1. My Bad Conduct Discharge should be uplifted because I was having domestic problems at that time.

2. My discharge was not over heard thoroughly by my counsel. I wish to stay if possible but I was unable, because of too many problems at home.

3. My discharge should be revied I believe because I know I did wrong and wish to better myself in any way possible.

4. I wish to be a peace officer in Texas so that I may help others with domestic problems. My discharge, I believe should be lifted so that I may do so. Thank you.

Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
Copies of DD Form 214 (2)

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: USMC              None
         Inactive: USMCR(J)                931208 - 941003  COG

 Period of Service Under Review :
Date of Enlistment: 941004               Date of Discharge: 970805

 Length of Service (years, months, days):

         Active: 01 06 06
         Inactive: None

 Age at Entry: 18                          Years Contracted: 4

Education Level: 12                        AFQT: 55

 Highest Rank: PFC

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: NOB                           Conduct: NOB

 Military Decorations: None

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

Days of Unauthorized Absence: 408

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 :

950612:  Applicant declared a deserter on 950606 having been an unauthorized absentee since 1900, 950507 from SAC CO HQSVCBN, SOI MCB CAMP PENDLETON, CA.

960417:  Applicant surrendered to military authorities on 960415 (1300) at SAC CO HQSVCBN, SOI MCB CAMP PENDLETON, CA. Returned to military control 960415 (1300). Retained.

960617:  Applicant declared a deserter on 960701 having been an unauthorized absentee since 0700, 960601 from H&SCo, H&SBN, SOI, MCB, CAMPEN.

960821:  Applicant apprehended by civilian authorities on 960806 (1800) at H&SCo, H&SBN, SOI, MCB, CAMPEN. Returned to military control 960806. Retained.

960618:  Special Court-Martial.
         Charge I: violation of the UCMJ, Article 86 (2 Specifications):
         Specification 1: Without authority absent himself from 950505 to 960415; Specification 2: Without authority absent himself from 960601 to 960806.
         Charge II: violation of the UCMJ, Article 134: Break restriction.
         Findings: to Charge I and specification 1 and 2 thereunder, guilty. To Charge II and specification thereunder, guilty.
         Sentence: Confinement for 100 days, reduction to E-1, and a bad conduct discharge.
         CA 961216: Sentence approved and ordered executed except for the BCD, but execution of that portion of the sentence adjudging confinement in excess of 90 days is suspended for a period of 12 months from the date of this action, at which time, unless sooner vacated, the suspended portion of the sentence will be remitted without further action. The accused will be credited 36 days against the sentence to confinement.
        
970218:  To appellate leave.

970513:  NMCCMR: Affirmed findings and sentence.

970805:  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 970805 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 through 4, 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 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. 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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