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USMC | DRB | 2002_Marine | MD02-00731
Original file (MD02-00731.rtf) Auto-classification: Denied


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

ex-PVT, USMC
Docket No. MD02-00731

Applicant’s Request
The application for discharge review, received 020424, requested that the characterization of service on the discharge be changed to honorable or general (under honorable condi-tions) and the reason for the discharge be changed to convenience of the government. The Applicant requested a documentary record discharge review. The Applicant listed American Legion as his representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 030410. 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. (Equity Issue) Pursuant to 10 U.S.C. 874 (b) (U.C.M.J., Article 74) and in accordance with SECNAVINST 5420.174C, enclosure (1), paragraphs 2.24 and 9.3, this former member requests the Board’s clemency relief with up-grade of his characterization of service to under honorable conditions on the basis of his post service conduct.
Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant Son's Birth Certificate
Character Reference Letter from M_ R_
Letter of Recommendation from J_ G_
Letter of Recommendation from C_ D. E_
Reference Letter from Applicant's Mother
Reference Letter from Applicant's Wife
Copies of DD Form 214 (2)
Request for Military Records
Service Related Documents (20 pages)

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: USMC              None
         Inactive: USMCR(J)                971029 - 980525  COG

 Period of Service Under Review :
Date of Enlistment: 980526               Date of Discharge: 000121

 Length of Service (years, months, days):

         Active: 01 03 26
         Inactive: None

 Age at Entry: 18                          Years Contracted: 4

Education Level: 12                        AFQT: 66

 Highest Rank: PVT

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 1.9 (3)                       Conduct: 1.9 (3)

 Military Decorations: None

 Unit/Campaign/Service Awards: Rifle Marksman Badge

Days of Unauthorized Absence: (85)980918-981211

 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 :

980918:  Applicant to unauthorized absence as of 1645 on this date.

981018:  Applicant declared a deserter as of 1645 this date.

981212:  Applicant from unauthorized absence at 0543 on this date when apprehended by El Paso County Jail, El Paso, TX (. Returned to military control at 0543 this date.

981215:  Applicant to pre-trial confinement from 981215 to 990118 (35 days); time credited against confinement.

990119:  Special Court-Martial.
         Charge I: violation of the UCMJ Article 86:
         Specification 1: Did, on or about 980918, without authority, absent himself from his unit, until apprehended on or about 981212 (85 days/A).
         Findings: to Charge I and specification 1 thereunder, guilty.
         Sentence: Confinement for 50 days, forfeiture of $639.00 pay per month for 1 month, and a bad conduct discharge.
         CA 990315: Sentence approved and ordered executed except for the bad conduct discharge, but execution of that portion of the sentence adjudging to 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.
        
990125:  Applicant to appellate leave.

990905:  Navy-Marine Corps Court of Military Review: Affirmed findings and sentence.

000121:  Special Court-Martial Supplemental Order: Article 71(c), UCMJ, having been complied with, the Bad Conduct discharge is ordered executed.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 000121 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 by appellate review authority, 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 Applicant, through counsel, contends that aspects of his post-service conduct, to include continued education, employment, and stable family life should be considered in the recharacterization of his discharge. The NDRB is authorized to consider post-service factors in the recharacterization of a discharge even though there is no law or regulation that provides for an unfavorable discharge to be upgraded based solely on the passage of time or good conduct in the civilian life subsequent to leaving the service. Outstanding post-service conduct, 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 may be considered. Verifiable proof of 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. E vidence of continuing educational pursuits, an employment record, documentation of community service, and certification of non-involvement with civil authorities are examples of documents that may be provided to the Board to receive consideration of relief based on post-service conduct. The Board deemed the documentation provided by the Applicant as not sufficient for the Board to consider an upgrade of the characterization of discharge. Relief on this basis is denied.

 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, Absence without leave (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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