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USMC | DRB | 2001_Marine | MD01-00670
Original file (MD01-00670.rtf) Auto-classification: Denied


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

ex-PVT, USMC
Docket No. MD01-00670

Applicant’s Request
The application for discharge review, received 010410, 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 010928. 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

 1. While I, M____ S____ was in training at Camp Grieger, NC, I was injured while waiting for a Med Board , I was constantly messed with by superiors. I was moved to MATT company awaiting a discharge. During my time at MATT co, I had caught all kinds of grief. First they said I was under the suspicion of using drugs. At that time they threw me in the Brig, after 45 days, they released me for lack of evidence. That night when I had gotten back to the barracks, I knew something was up when everyone in the other barracks laughed at me when they saw me. That night they came over to our barracks and started a pillow fight like they used to do (and still do). The next morning they were up and put handcuffs on me, and said I was going back to the brig for assault and disobeying a lawful order. At that time I was sick of it. I was not even a week away from being discharged when all this started. I was the only one who went to the brig because of the pillow fight. When the lawyer came to see me they told I could get 6 months unless I plead guilty with a pre-trial agreement then I would be released. At that point I decided that was my best option, so I did, and I didn't know I was pleading guilty to drug charges too. When I was released off the camp and discharged, I stayed at a hotel that night. My buddies came to see me and they told me they found out that it was all a set up! This is why I would like to have my discharge up-graded, because of unlaw charged or good reason. I do not believe my actions should result in such punishment. 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: USMC              None
         Inactive: USMCR(J)                981021 - 981027  COG

 Period of Service Under Review :
Date of Enlistment: 981028               Date of Discharge: 000823

 Length of Service (years, months, days):

         Active: 01 08 07
         Inactive: None

 Age at Entry: 20                          Years Contracted: 4

Education Level: 12                        AFQT: 54

 Highest Rank: PFC

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 4.0 (2)                       Conduct: 4.0 (2)

 Military Decorations: None

 Unit/Campaign/Service Awards: Rifle Marksman Badge

Days of Unauthorized Absence: 1

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 :

990505:  Counseled for deficiencies in performance and conduct. [Unauthorized Absence and disobeying an order from a NCO]. Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
990505:  NJP for violation of UCMJ, Article 86: UA(AWOL) from 1630, 990414 to 0730, 990415 from RTT, SOI, MCB, CamLej, violation of UCMJ Article 86: UA(AWOL) from 2145, 990427 to 0030, 990428 from RTT, SOI, MCB, CamLej, violation of UCMJ Article 86: UA(AWOL) from 2400 990501 to 0700, 990502 from RTT, SOI, MCB, CamLej; violation of UCMJ Article 91: At RTT, ITBn, SOI, MCB, CamLej, 1630, 990413, willfully disobeyed an order from Sgt C____ not to stay in a hotel without authorization.
         Award: Forfeiture of $479.00 per month for 2 months (suspended for 6 months) , restriction for 60 days, reduction to E-1. Not appealed.

990520:  NJP for violation of UCMJ, Article 86: UA(AWOL) from RTT, ITBn, SOI, MCB, CamLej, 0700, 990515, did absent himself from his appointed place of duty and did remain absent until 1515, 990516; violation of UCMJ Article 134: Broke restriction at 0700, 990515 at RTT, ITBn, SOI, MCB, CamLej.
         Award: Forfeiture of $223.00 per month for 1 month. Not appealed.

990609:  NJP for violation of UCMJ, Article 86: UA(AWOL) from 2200, 990605 to 0430, 990607 from MATCo, HqSptBn, SOI, MCB, CamLej; violation of UCMJ Article 90: At MATCo, HqSptBn, SOI, MCB, CamLej; on or about 990605, willfully disobeyed an order from 1 st Lt H____ not to drink alcohol, violation of UCMJ Article 134: At MATCo, HqSptBn, SOI, MCB, CamLej; 2200 990605, broke restrictions.
         Award: Forfeiture of $479.00 per month for 2 months, restriction and extra duty for 45 days. Not appealed.

990611:  Pretrial confinement from 990611 to 990729 (49 days), credited toward the period of confinement.

990723:  NJP imposed and suspended on 990505 for a period of 2 months is hereby vacated and the punishment is ordered executed.

990730:  Special Court-Martial.
         Charge I: violation of the UCMJ, Article 112a: Wrongful use of marijuana.
         Additional Charge I: violation of the UCMJ, Article 91: Willfully disobey SNCO. Additional Charge II: On or about 990720, unlawfully strike various unknown others about the head and person with a pillow.
         Findings: to Charge I and specification thereunder, guilty. To Additional Charge I and II and specification thereunder, guilty.
         Sentence: Confinement for 60 days, Forfeiture of $639.00 pay per month for 2 months, and a bad conduct discharge.
         CA 991108: Sentence approved and ordered executed except for the BCD.
        
990730:  To appellate leave.

000516:  NMCCMR: Affirmed findings and sentence.

000823:  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 000823 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. 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. 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. 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 91, disobey order from a staff non-commissioned officer; Article 112a, wrongful use of a controlled substance; Article 128, assault.
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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