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USMC | DRB | 2001_Marine | MD01-00998
Original file (MD01-00998.rtf) Auto-classification: Denied


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

ex-Pvt, USMC
Docket No. MD01-00998

Applicant’s Request
The application for discharge review, received 010727, 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 designate a representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 020417. 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. I, (P_ A. M_ - Applicant) sincerely ask for a discharge upgrade based on 2 issues. First as you can clearly see I was putting fourth all I could to be a good Marine and give to the marine Corps what was expected. My DD 214 shows this. I feel my court martial was unjust, I was willing to rectify my actions of going UA but I was unable to because of a Bad Conduct Discharge. I feel I should have had another chance to prove myself worthy of my commitment to my job and the Marine Corps.

2. Secondly, I don't even have the opportunity to redeem myself in another branch of service because of the RE-code given. I don't think that is fare, all I did was go home a little longer than I should have and that single mistake destroyed what I had built for almost 4 years. I don't see whey nor do I understand why I was punished so harshly. I did not want to get discharged, and if that was the only option of punishment I don't feel I deserved a bad conduct discharge. If you look at my achievements on the DD214 you can see that the discharge does not fit the individual which is myself. I would like to have an upgrade so that I could have the option of re-entering another Armed Forces and prove to my country and myself I can do better and I've learned from my mistakes.

 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)                930123 - 930829  COG

 Period of Service Under Review :
Date of Enlistment: 930830               Date of Discharge: 980218

 Length of Service (years, months, days):

         Active: 04 05 18 (Doesn't exclude lost/confinement/appellate leave time.)
         Inactive: None

 Age at Entry: 18                          Years Contracted: 4

Education Level: 12                        AFQT: 45

 Highest Rank: Cpl

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 4.5 (8)              Conduct: 3.3 (9)

 Military Decorations: None

 Unit/Campaign/Service Awards: NDSM, Rifle Expert Badge, LoA(2), CoC, MM (3)

 Days of Unauthorized Absence: 47

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 :

940914:  Counseled for deficiencies in performance and conduct [disrespect to a commissioned officer and conduct disruptive to good order and discipline]. Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

960513:  NJP for violation of UCMJ, Article 134: did use indecent language during a conversation with PFC A_ on 23 Apr 96.
 Awarded reduction to E-3 and restriction and extra duties for 30 days. Not appealed.
960513:  Counseled for deficiencies in conduct [using indecent language during a conversation with PFC A_]. Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

960513:  Counseled for deficiencies in performance and conduct [indecent language]. Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

960610:  Counseled for deficiencies in performance and conduct [arriving late to work due to excessive drinking and being unable to perform duties]. Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

960723:  Unauthorized absence since 0731.

960823:  Applicant declared a deserter on 960823 having been an unauthorized absentee since 0731, 960723 from MTACS-38, macg-38, MCAS El Toro, CA.

960909:  Applicant surrendered to I&I Youngston, Vienna, OH at 1515, 960909 and delivered to military authorities on 960910 (1800).

961218:  Special Court-Martial.
         Charge I: violation of the UCMJ, Article 86:
         Specification: did, on o about 23 July 1996, without authority, absent himself from his unit, and did remain so absent until on or about 9 Sep 96.
         Findings: to Charge I and specification thereunder, guilty.
Sentence: Reduction to E-1, 48 days confinement, and a bad conduct discharge.
          CA 970501: Sentence approved and ordered executed except for the BCD.

961218:  To confinement, Sentence of SPCM.

960204:  From confinement, to duty.

960204:  To appellate leave.

971121:  NMCCMR: Affirmed findings and sentence.

980218:  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 980218 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. 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.

 Issue 2. Concerning a change in reenlistment code, the NDRB has no authority to change reenlistment codes or make recommendations to permit reenlistment, reentry, or reinstatement into the Naval Service or any other branch of the Armed Forces. Neither a less than fully honorable discharge nor an unfavorable “RE” code is, in itself, a bar to reenlistment. A request for waiver is normally done only during the processing of a formal application for enlistment through a recruiter. Relief is therefore denied.

The applicant implies that a permissive doctrine exists whereby one in the military is allowed a “single misdeed”. The Board believes that the applicant is confusing this with the civilian world wherein some offenses are treated with leniency because they are a first time incident on an otherwise clear record. No such leniency exists in the military, nor was the applicant’s desertion his only misdeed. The applicant is responsible for his actions and must accept the consequences of his misdeeds. The Board will not grant relief on the basis of this issue.

The applicant’s discharge characterization accurately reflects his service to his country. The discharge was proper and equitable. Normally, to permit relief, an error or injustice must have existed during the period of enlistment in question. No such error or injustice occurred during the applicant’s enlistment. 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 based on clemency. Verifiable proof of any post-service accomplishments must be provided in order for the applicant to request clemency based on post-service conduct and behavior. 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 relief, 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.
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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