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USMC | DRB | 2001_Marine | MD01-00367
Original file (MD01-00367.rtf) Auto-classification: Denied


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


ex-PFC, USMC
Docket No. MD01-00367

Applicant’s Request
The application for discharge review, received 010130, 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. on 010822. 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

1. I humbly request that my discharge be upgraded to a general discharge under honorable conditions. I regret hitting Staff Sgt. B_ and offer my sincere apologies regarding that incident. Please review my service records and special court martial records and let me know if you can have mercy on me. Thank you.
Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
Copy of DD Form 214

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
          Inactive: USMCR(J)                880729 - 880821  COG
Period of Service Under Review :
Date of Enlistment: 880822               Date of Discharge: 901015

 Length of Service (years, months, days):
         Active: 02 01 24
          Inactive: None
Age at Entry: 24                          Years Contracted: 4

 Education Level: 10 GED           AFQT: 58
Highest Rank: PFC

 Final Enlisted Performance Evaluation Averages (number of marks):
Proficiency: 4.2 (2)                       Conduct: 3.7 (2)

 Military Decorations: None
Unit/Campaign/Service Awards: Certificate of Appreciation

 Days of Unauthorized Absence: None
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 :

890628:  Special Court-Martial.
          Charge I: violation of the UCMJ, Article 86:
          Specification: Fail to go to appointed place of duty on 11May89.
          Charge II: violation of the UCMJ, Article 91:
          Specification: Strike SSgt in the face with his fist on 11May89.
         Findings: to Charge I and II and specifications thereunder, guilty.
          Sentence: Forfeiture of $400.00 per month for 4 months, confinement for 4 months, reduction to Pvt, and a bad conduct discharge.
          CA 890906: Only so much of the sentence as provides for a bad conduct discharge, 90 days confinement, forfeiture of $400.00 pay per month for four months and reduction to Pvt is approved and ordered executed except for the BCD.
890711:  Psychiatric evaluation: Mixed personality disorder with immature features.

 890628:  To confinement, Sentence of SPCM.

890807:  To appellate leave.

900117:  NC&PB denied clemency and restoration.

900305:  NMCCMR: Affirmed findings and sentence.

900725:  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 901015 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, and 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 the applicant’s issue, 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 (C, 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’s post-service documentation needs to be more encompassing. Evidence of continuing educational pursuits, an employment record, documentation of community service, certification of non-involvement with civil authorities and proof of his not using drugs, are examples of verifiable documents that should have been provided to receive consideration for clemency based on post-service conduct. He is reminded that he remains eligible for a personal appearance hearing, provided an application is received, at the NDRB, within 15 years from the date of his discharge. The applicant can provide additional documentation to support any claims of post-service accomplishments at that time. Legal representation at a personal appearance hearing is highly recommended but not required. 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 86, failure to go to appointed place of duty, and Article 92, striking a superior staff noncommissioned officer.
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 “ afls10.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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