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USMC | DRB | 2001_Marine | MD01-00075
Original file (MD01-00075.rtf) Auto-classification: Denied


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

ex-PVT, USMC
Docket No. MD01-00075

Applicant’s Request
The application for discharge review, received 001017, requested that the characterization of service on the discharge be changed to entry level separation or uncharacterized. 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 010405. 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 3 to 2 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. Before I went UA I went through the chain of command about the problems with my father being terminally ill. The reason why I went UA was to spent time with my father and his final days. The discharge is proper but my Reentry code is not. I just want want a better reentry code so I would be to reenlist even if have go to boot camp again. 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)
Coaching Spirit Award
Associate Performance Notice (2)
Night Crew Performance Review (2pgs)
Appellate Rights/Leave Package Request (2)
Appellate Rights Statement (8pgs)
Clemency Review Waiver
Voluntary Appellate Leave Request (2pgs)
Police Clearance Letter
Letters of Recommendations (3)
Reference Letter
Character Reference Letter

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: USMC              None
         Inactive: USMCR(J)                920721 - 930711  COG

 Period of Service Under Review :
Date of Enlistment: 930712               Date of Discharge: 960208

 Length of Service (years, months, days):

         Active: 01 08 07
         Inactive: None

 Age at Entry: 18                          Years Contracted: 4

Education Level: 12                        AFQT: 35

 Highest Rank: Pvt

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 4.1 (2)                       Conduct: 4.2 (2)

 Military Decorations: None

 Unit/Campaign/Service Awards: M16 Marksmanship Badge, NDSM

Days of Unauthorized Absence: 274

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 :

940209:  Counseled for deficiencies in performance and conduct. [You have chosen a course of action that is in direct violation with the UCMJ, by taking an unauthorized absence from your place of duty. This a violation of Article 86 of the UCMJ]. Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
940531:  Counseled for deficiencies in performance and conduct. [You have been joined to SAC Legal for discharge as a pattern misconduct due to receiving the following charges: Art. 86 UA (AWOL) 940215/1800 to 940516/1945, SNM turned himself into the duty NCO, SNM pending NJP for UA 940119/1800 to 940208/1630]. Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

941212:  Special Court-Martial.
         Charge I: violation of the UCMJ, Article 86 (3 Specifications):
         Specification 1: Did on 940109 without authority absent himself from his org until 940208
         Specification 2: Did on 940215 without authority absent himself from his org until 940516.
 Specification 3: Did on 940602 without authority absent himself from his org until 941105.
          Findings: to Charge I and specification 1, 2, and 3 thereunder, guilty.
         Sentence: Confinement for 60 days, forfeiture of $550.00 pay per months for 2 months, reduction to E-1, and a bad conduct discharge.
         CA 950220: Sentence approved and ordered executed except for the BCD.
        
950112:  To appellate leave.

951103:  NMCCMR: Affirmed findings and sentence.

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 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).

The applicant did not contest the propriety of the discharge. His issue was a request for a better reenlistment code. The following is provided for the applicant’s information. Concerning a change in reenlistment code, the NDRB has no authority to change reenlistment codes or make recommendations to permit reentry into the naval service or any other of the Armed Forces. The NDRB has no jurisdiction over reenlistment, reentry, or reinstatement into the Navy or Marine Corps. Reenlistment policy is promulgated by the Commandant, United States Marine Corps, Code MMEA, 3280 Russell Road, Quantico, VA 22134. A request for a waiver is normally done only during the processing of a formal application for enlistment through a recruiter. Relief, on this basis is therefore, denied.

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. While the Board was very favorably impressed with the applicant’s accomplishments to date, a Bad Conduct Discharge is a serious penalty to overcome. The Board would like to see more community service and educational pursuits as a payment of the debt owed to the Marine Corps and to society in order to convince the Board of the applicant’s remorse and dedication to an honorable character. The close vote, 3 to 2 to not upgrade reflects the credibility of the applicant’s case and he is strongly encouraged to continue his efforts and to appear before the Board with documentation of service to others.

The applicant is eligible for a personal appearance hearing provided that an application is received within 15 years from the date of discharge. Representation at a personal hearing is not mandatory, but is strongly recommended. This representation need not be a lawyer, but may be any person of stature and good standing in the community including the various veterans’ organization.

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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