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USMC | DRB | 2002_Marine | MD02-00668
Original file (MD02-00668.rtf) Auto-classification: Denied


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

ex-PVT, USMC
Docket No. MD02-00668

Applicant’s Request
The application for discharge review, received 020408, 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 030124. 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, as submitted

 1. Reason for being unauthorized absence.

2.       I was discharged from the Marine Corps on October of last year. I never intended to
dishonor the Marine Corps nor did I ever meant to leave in that manner. As our country is at War, I wouldn't think twice if I were to be called back to duty. Today I still wear my dog tag and I still carry my eagle, globe, and anchor. I take pride in doing so because I still and always will love the Marine Corps. The phrase "Once a Marine always a Marine", is something I will cherish forever.
Since being discharged, I have been working and going to school fulltime. I attend North Harris College and I am working towards a degree in Criminal Justice. I am striving to work in law enforcement field as a police officer. I have been told that they will have to review my case after receiving a Bad Conduct Discharge from the military. In other words, I still have a chance even though with this kind of discharge but an upgrade would be even better. One of the reasons I joined the Marine Corps was to serve and to protect the people of this country. This is something I was born to do and I want to continue this task as a law enforcement officer.
At this time, I would like to ask that my case be reviewed and that my Bad Conduct Discharge be upgraded to a General Discharge. I am asking for an opportunity that will help me accomplish one of my goals in life. My chances are greater with a General Discharge and can be the cause to my success. All I'm asking is for a second chance. Thank you for your time and God Bless.

 Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Reference Letter from Applicant's Father
Reference Letter from Applicant's Mother
Reference Letter from Applicant's Fiancé
Employment Reference Letter from Principal E_ V_, J_ L. M_ Middle School
Reference Letter from I_ F_, Special Education Teacher
Reference Letter from D_ M_, Co-worker
Letter of Recommendation from M. C_ T_, North Harris College
Copies of DD Form 214 (3 pages)
Copies of Service Related Documents (46 pages)

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: USMC              None
         Inactive: USMCR(J)                981123 - 990110  COG

 Period of Service Under Review :
Date of Enlistment: 990111               Date of Discharge: 011015

 Length of Service (years, months, days):

         Active: 02 09 05 (Does not exclude lost time)
         Inactive: None

 Age at Entry: 22                          Years Contracted: 4

Education Level: 12                        AFQT: 46

 Highest Rank: PVT

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 2.6 (2)                       Conduct: 1.7 (3)

 Military Decorations: None

 Unit/Campaign/Service Awards: Rifle Expert Badge

Days of Unauthorized Absence: 185

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 :

990622:  NJP for violation of UCMJ, Article 86: UA from 1501, 990525 to 2245, 990621 (26 days), violation of UCMJ, Article 92: Disobeying a lawful order by the order of the Commanding General, MCRD San Diego, to report to the Commanding Officer, SOI on or about 990525 for duty.
         Award: Forfeiture of $239.00 pay per month for 1 month (suspended for 6 months), restriction and extra duty for 14 days (suspended for 6 months). No indication of appeal in the record.
990805:  Declared a deserter.

991217:  To confinement, Sentence of SPCM.

000121:  Special Court-Martial.
         Charge I: violation of the UCMJ, Article 86: Did on or about 990705, without authority, absent himself from his unit, until apprehended on or about 991213.
         Findings: to Charge I and specification thereunder, guilty.
         Sentence: Confinement for 75 days, and a bad conduct discharge.
         CA 001010: Sentence approved, and except for the bad conduct discharge, ordered executed, but the execution of that portion of the sentence adjudging all confinement in excess of time served is suspended for a period of twelve months from the date of this action, at which time, unless sooner vacated, the suspended portion of the sentence will be remitted without further action.
        
000302:  To appellate leave.

000510:  No clemency granted.

010706:  NMCCMR: Affirmed findings and sentence.

011015:  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 011015 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.

 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 inequity must have existed during the period of enlistment in question. No such error or inequity is evident 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. Relief not warranted.

The Applicant 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. Representation at a personal appearance hearing is recommended but not required.


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 “ afls14.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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