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USMC | DRB | 2001_Marine | MD01-00514
Original file (MD01-00514.rtf) Auto-classification: Denied


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


ex-PVT, USMC
Docket No. MD01-00514

Applicant’s Request
The application for discharge review, received 010312, requested that the characterization of service on the discharge be changed to honorable. 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 011108. 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

 Prior to the documentary discharge review, the applicant introduced no issues as block 8 on the DD Form 293 is blank.

Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
Letter from Applicant (2pgs)
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)                820910 – 830209  COG
Period of Service Under Review :
Date of Enlistment: 830210               Date of Discharge: 870331

 Length of Service (years, months, days):
         Active: 04 01 22
          Inactive: None
Age at Entry: 23                          Years Contracted: 6

Education Level: 15                        AFQT: 49
Highest Rank: LCpl

 Final Enlisted Performance Evaluation Averages (number of marks):
Proficiency: 3.8 (9)                       Conduct: 3.7 (9)

 Military Decorations: None
Unit/Campaign/Service Awards: M16 Rifle Marksman Badge

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 :

840322:  NJP for violation of UCMJ, Article 91: Disobeyed Sgt L_____ order to leave the area on or about 2315, 840219; violation of UCMJ, Article 134: Drunk and disorderly on or about 2315, 840219.
 Awarded forfeiture of $100.00 per month for 2 months (suspended for 6 months), restriction and extra duties for 30 days. Not appealed.
840409:  NJP for violation of UCMJ, Article 92: Dereliction in the performance of duty on or about 0534, 849324, by sleeping in this rack and willfully failing to stand ADNCO of Base Range Detachment as it was his duty to do so.
         Award: Correctional Custody for 30 days with suspension from duty. No indication of appeal in the record.

 840412:  Counseled for deficiencies in performance and conduct. [Frequent involvement with military authorities stemming from violations of Articles 91, 92, and 134 of the UCMJ, which resulted in two Article 15's in less than one month]. Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
850409:  Attended Level II Treatment 850409 to 850503 [Extracted from Substance Abuse Evaluation dated 850906].

 851028:  NJP for violation of UCMJ, Article 86: Failed to go at the time prescribed to appointed place of duty at 0715, 850926, violation of UCMJ Article 86: Absent himself from appointed place of duty at 1506, 850928 and did remain so absent until 1600, 850928; violation of UCMJ, Article 86: Fail to go at the time prescribed to appointed place of duty at 0730, 850929, and did remain so absent until 0830, 850929.
         Award: Forfeiture of $300.00 per month for 1 month, reduction to E-2. Appealed. Appealed denied 851117.
860114:  Special Court-Martial (trial dates 860114 – 860116)
          Charge I : violation of the UCMJ, Article 86 ( 3 Specifications ):
         Specification 1 : Failed to go to appointed place of duty on or about 0800, 851102, to wit: restricted muster; Specification 2 : Failed to go to appointed place of duty on or about 1000, 851102, to wit: restricted muster; Specification 3: Failed to go to appointed place of duty on or about 0715, 851218, to wit: Files and Directives Sections. Charge II : violation of the UCMJ, Article 91 (2 Specifications): Specification 1 : Disrespectful in language and deportment towards SSgt R.A. G_____ on or about 851102, by swinging his arms and gesturing belligerently toward SSgt G____ and saying to him in a combative tone "I don't care, we will see what happens" or words to that effect; Specification 2 : Disrespectful in language and deportment towards SSgt M.D. T____ by ignoring SSgt T____'s order to produce his I.D. card on two occasions and then replying in a belligerent manner "I ain't got no fucking I.D. card" or words to that effect, and approaching SSgt T___ in a threatening manner. Charge III : violation of the UCMJ, Article 92: (2 Specifications ): Specification 1 : Did at BEQ room #153, Bldg 330, MCRD, PISC on or about 860117, violate paragraph 6011 of BnO P11014.2B by wrongfully having alcoholic beverages in his BEQ room; Specification 2 : Did at BEQ room #153, Bldg 330, MCRD, PISC on or about 860117, violate paragraph 6007 of BnO P11014.2B by wrongfully having two women in his BEQ room. Charge IV : violation of the UCMJ, Article 107: Did at HQCo, SptBn, RTR, MCRD, PISC on or about 851219 with intent to deceive make a false statement to SSgt D.E. R____; Charge V : violation of the UCMJ, Article 134: Did at HQCo, SptBn, RTR, MCRD, PISC, on or about 851103 break restrictions. Additional Charge I : violation of the UCMJ, Article 95: Did at HQCo, SptBn, RTR, MCRD, PISC, on or about 851220 resist being apprehended by Sgt R.J. C_____ ADNCO for SptBn. Additional Charge II : violation of the UCMJ, Article 91: Did at bldg 330, MCRD, PISC on or about 851220, disobey a lawful order given by Sgt R.J. C____ to "Report to the Duty NCO office. Additional Charge III : violation of the UCMJ, Article 112: Was at HQCo, SptBn, RTR, MCRD, PISC, at 1500 on or about 851219, drunk on duty as phone watch at RAC, RTR, MCRD, PISC.
         Findings: to Charge I and specification 1 and 2 thereunder, guilty. To Charge II and specification 1 not guilty, specification 2, guilty. To Charge III and specification 1 and 2 thereunder, guilty. To Charge IV and specification thereunder, guilty. To Charge V and specification thereunder, not guilty. To Additional Charge I and specification thereunder, not guilty. To Additional Charge II and specification thereunder, not guilty. To Additional Charge III and specification thereunder, guilty.
          Sentence: Confinement for 6 month, fine of $426.00 pay per month for 6 months, restriction for 0 months, reduction to E-1, and a bad conduct discharge.
         CA 860422: Sentence approved and ordered executed except for the BCD.
        
860116:  To confinement, Sentence of SPCM.

860615:  From confinement, to duty.

860804:  NC&PB denied clemency and restoration.

861107:  NMCCMR: Affirmed findings and sentence.

870331:  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 870331 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).
Issue 1. The applicant introduced no decisional issues for consideration by the Board. 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. Relief denied.
The applicant’s discharge characterization accurately reflects his service to his country. The discharge was proper and equitable. Additionally, there is no law, or regulation, which provides that an unfavorable discharge may be upgraded based solely on the passage of time, or good conduct in civilian life, subsequent to leaving the service. However, the NDRB is authorized to consider outstanding post-service factors in the recharacterization of a discharge, 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. Verifiable proof of any post-service accomplishments must be provided in order for the applicant to claim post-service conduct and behavior as a reason to upgrade a less than Honorable discharge. 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. The applicant did not provide sufficient documentation to warrant an upgrade to his discharge. 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 P1900.16C), effective 821001 until 890626.

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; Article 91, disrespect; Article 92, disobeying orders; Article 107, false official statement.
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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