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USMC | DRB | 2001_Marine | MD01-00835
Original file (MD01-00835.rtf) Auto-classification: Denied


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


ex-PVT, USMC
Docket No. MD01-00835

Applicant’s Request
The application for discharge review, received 010605, requested that the characterization of service on the discharge be changed to honorable. The applicant requested a personal appearance hearing discharge review before a traveling panel closest to San Bernardino, CA. The applicant did not list any representative on the DD Form 293. In the acknowledgment letter to the applicant, he was informed that the Naval Discharge Review Board (NDRB) does not travel, all hearings are held in the Washington, DC Area. The Naval Discharge Review Board (NDRB) also advised that the board first conducts a documentary review prior to any personal appearance hearing.

Decision

A documentary discharge review was conducted in Washington, D.C. on 011218. 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. The issue I'm presenting are facts that are difficult to articulate in writing, however, my issues are as follows: To the alleged incidents I had no prior misconduct on any service record. I was at the time of these alleged incidents I though, legally separated from the service. During my court martial my counselor advised me to plea guilty to all charges and my record would be clean. Being a marine and dublish, I followed his advice when I knew I wasn't guilty. The one offense I was guilty of at time I was under the assumption that I was legally separated from service.
Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
Letters from Applicant (2)
Copy of Status Letter for Pending Discharge from Defense Counsel
 Copy of Request for Restoration/Clemency
Copy of Special Court Martial Order (2pgs)
Copy of Fax from The MCAGCC Defense Team about Record of Trial
Copy of Report of Result of Trial (2pgs)
Copy of MCSGCC Defense Client Information
Copy of Recommendation for Admin Separation from Staff NCO in Charge, SACC
Copy of Medical Consultation Sheet
Copy of Discharge Pro/Con Markings
Copy of Additional Information to the DD Form 2648
Copy of DD Form 2648
Copy of Request for Separation in Lieu of Trial by Court Martial from SJA
Copy of Record of Trial (32 pgs)

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: USMC              None
          Inactive: USMCR(J)                961003 - 961216  COG
Period of Service Under Review :
Date of Enlistment: 961217               Date of Discharge: 000718

 Length of Service (years, months, days):
         Active: 03 05 08
          Inactive: None
Age at Entry: 25                          Years Contracted: 4

Education Level: 12                        AFQT: 54
Highest Rank: LCpl

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 3.7 (4)                       Conduct: 3.4 (4)
Military Decorations: None
Unit/Campaign/Service Awards: MUC, Rifle Marksman Badge

Days of Unauthorized Absence: 2

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 :

980724:  Counseled concerning illegal drug involvement, specifically, Usage of THC identified through urinalysis testing, NAVDRUGLAB SAN DIEGO MSG 062251Z JAN 98 [Extracted from ROT].
981216:  Special Court-Martial (Trial dates 981216 and 990112).
         Charge I: violation of the UCMJ, Article 86: Did on or about 980916, without authority, absent himself from his unit until 980918. Charge II: violation of the UCMJ, Article 112a: (2 Specifications), Spec 1: Did, between about 981019 and 981102 wrongfully use marijuana.
          Specification 2: Did, on or about 981115, wrongfully distribute an unknown amount of marijuana.
          Findings: to Charge I and specification 1 thereunder, withdrawn. To Charge II: and specification 1 thereunder, guilty, to Specification 2 under Charge II thereunder, withdrawn.
          Sentence: Confinement for 53 days, reduction to E-1, and a bad conduct discharge.
          CA 990413: Sentence approved and ordered executed except for the BCD. Accused credited 53 days against sent to confinement.
        
981216:  To appellate leave.

 990715:  NC&PB denied clemency.
990804:  NMCCMR: Affirmed findings and sentence.
000718:  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 000718 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 Board found no evidence that the applicant had been released from active duty prior to the commission of the offense for which he was tried at a special court-martial. 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.

 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 112a, wrongful use of a controlled substance.
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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