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USMC | DRB | 2002_Marine | MD02-00755
Original file (MD02-00755.rtf) Auto-classification: Denied


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


ex-PVT, USMC
Docket No. MD02-00755

Applicant’s Request
The application for discharge review, received 020502, 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 030206. 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
Prior to the documentary discharge review, the Applicant introduced no issues as block 8 on the DD Form 293 is blank.

Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
None

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: USMC              None
          Inactive: USMCR(J)                981030 - 981108  COG
Period of Service Under Review :
Date of Enlistment: 981109               Date of Discharge: 011129

 Length of Service (years, months, days):
         Active: 02 11 20
          Inactive: None
Age at Entry: 17                          Years Contracted: 4

Education Level: 12                        AFQT: 53

 Highest Rank: PFC
Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 4.2 (3)                       Conduct: 4.1 (3)
Military Decorations: None

 Unit/Campaign/Service Awards: Rifle Sharpshooter Badge
Days of Unauthorized Absence: (2) 990823-990824
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 :

990310:  Counseled concerning the loss of ID card. Advised that failure to take corrective actions may result in administrative and disciplinary action.
990526:  Counseled for deficiencies in performance and conduct. (For mismanagement of finances and failure to be responsible for his actions which resulted in him to fall behind with his financial institution and write bad check to MWR.) Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
990823   Absent without authority from 990823 to 990825.
991007:  Confinement from 991007 to 991012.
991015:  Special Court-Martial [Tried dates 15, 26 October 1999].
          Charge I: violation of the UCMJ, Article 86: Did, on or about 990823, without authority absent himself from his unit, until on or about 990825.
         Charge II: violation of the UCMJ, Article 108: Did, on or about 990802, without proper authority, willfully destroy DOD decal sticker for registered vehicles, military property of the U.S.
 Charge III: violation of the UCMJ, Article 112a: (2 Specifications); Specification 1: Did, between 990812 and 990825, wrongfully use marijuana; Specification 2: Did, between 990819 and 990825, wrongfully use cocaine.
          Findings: to Charge I and specification 1 thereunder, guilty. To Charge II and specification thereunder, not guilty. To Charge III and specifications 1 and 2 thereunder, guilty.
         Sentence: Confinement for 50 days, reduction to E-1, and a bad conduct discharge.
         CA 991026: Sentence is 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 45 days 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.
        
991027:  Confinement from 991027 to 991121.

991130:  Page 11 entry documenting Applicant's refusal of medical treatment for his illegal drug involvement.

991130:  To appellate leave.

010114:  NC&PB denied clemency and restoration. VA Treatment offered.

010531:  NMCCMA: Affirmed findings and sentence.

011129:  SPCM Supplemental Order: Article 71(c) UCMJ, having been complied with, the bad-conduct discharge was ordered executed.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 011129 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).
The Applicant introduced no decisional issues for consideration by the NDRB. The relevant and material details stated in the special court-martial specifications are presumed by the Board to be established facts. With respect to a discharge adjudged by a court-martial, 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 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 [ e.g., 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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