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USMC | DRB | 2001_Marine | MD01-00607
Original file (MD01-00607.rtf) Auto-classification: Denied


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


ex-PVT, USMC
Docket No. MD01-00607

Applicant’s Request
The application for discharge review, received 010402, 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 011018. 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

 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:
Applicant's Letter of Explanation (5pgs)
Copy of DD Form 214
 Letter from Applicant

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: USMC              None
          Inactive: USMCR(J)                940804 - 950705  COG

 Period of Service Under Review :
Date of Enlistment: 950706               Date of Discharge: 980710

 Length of Service (years, months, days):
         Active: 02 06 05
          Inactive: None
Age at Entry: 18                          Years Contracted: 4

Education Level: 12                        AFQT: 32

 Highest Rank: PFC
Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 3.7 (2)                       Conduct: 3.7 (2)
Military Decorations: None

 Unit/Campaign/Service Awards: NDSM, Rifle Marksman Badge

Days of Unauthorized Absence: 33

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 :

960118:  NJP for violation of UCMJ, Article 112a: During Nov 95, wrongfully used marijuana.
         Award: Forfeiture of $400.00 per month for 2 months (forfeiture of $400.00 per month for 1 month suspended for 6 months), reduction to E-1. Not appealed.
960722:  Pretrial confinement 960722 to 960826.
960828:  Special Court-Martial.
          Charge I: violation of the UCMJ, Article 86: Did, on 960619, without authority, absent himself from his organization, to wit: Marine Corps Service School, Marine Corps Base, located at Camp Lejeune, North Carolina, and did remain so absent until 960719.
          Charge II: violation of the UCMJ, Article 120: Charge III: violation of the UCMJ, Article commit the offense of carnal knowledge with K_____ L. T_____. Charge III: violation of the UCMJ, Article 125: Did, on diverse occasions between March 1996 and April 1996, commit sodomy with K____ L. T_____, a child under the age of 16 years. Charge IV: violation of the UCMJ, Article 134: Did, between March 1996 and April 1996, commit an indecent act upon the body of K____ L. T_____, a female of age, not his wife.
         Findings: to Charge I, II, III and IV and specification thereunder, guilty.
                   Sentence: Confinement for 180 days, forfeiture of $500.00 pay per month for 6 months, and a bad conduct discharge.
          CA 970107: Sentence approved and ordered executed except for the BCD.
         
961219   From confinement, to duty.
970129:  Waiver of clemency review.

 970221:  To Involuntary appellate leave.
970318:  To appellate leave.
         
980128:  NMCCMR: Affirmed findings and sentence.
980611:  COMA: Petition for review denied.

 980710:  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 980710 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 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. Relief denied.
The applicant’s discharge characterization accurately reflects his service to his country. The discharge was proper and equitable. 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 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; Article 120, carnal knowledge; Article 125, sodomy with child under age of 16 years; Article 134, indecent acts.
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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