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USMC | DRB | 2002_Marine | MD02-01028
Original file (MD02-01028.rtf) Auto-classification: Denied


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

ex-Pvt, USMC
Docket No. MD02-01028

Applicant’s Request
The application for discharge review, received 020711, 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 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. My name is [Applicant]/[SSN deleted]. I am sending this application for the review of discharge for the following reasons. Number one, I no longer drink. Number 2 I no longer use drugs. The third reason is I feel like some of these issues with my discharge were overlooked. Document one is my record of trial on page 31 it states that the judge reccomended the bad conduct discharge be suspended because the Marine Corps was the best place for rehabilitation. On the action by the convening authority it states the sentence is approved and, except for the bad conduct discharge, ordered executed. On November 19, 1997 I was sent home on appellate leave, early in Feb 1998 I got this action by the convening authority and involuntary appellate paper. I should have been sent back to active duty instead of discharged with Bad Conduct because the proper planely states except for the bad conduct discharge. I have used drugs one time and that was when I got caught. I was drunk the night I used them that. I have included 2 past drug screens ad I have had many more than that. I have gone to school to get my commercial drivers license. I had to pass drug screen to get in there. I went and drove a truck for Arrow Trucking in Tulsa, OK I had to pass drug screen to work there. I was a great Marine with good pro's & con's and cared about my performance and appearance. I have no criminal record not do I drink or use drugs. Since I have been out of the Marine Corps, I have since gotton Married and I also have a three year old and another baby on the way with my wife. I am requesting that you could upgrade my discharge as well as Reenlistment code so I could get back into the Military and provide for my wife and my kids, also to serve my country. I feel that I could be a valuable asset to a unit because I could show the young (new) people the right way because of my past. I feel like I could and will promote a positive attitude and dicipline. I am prepared and willing to start at the bottom and work my way up.
Thanks for your time and patience.

 Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant's DD Form 214
MEDTOX drug testing custody and control form, dated December 20, 2001
LabCorp custody and control form, dated November 30, 2001
Certificate of Training. dated July 11, 2001
Student academic sheet
Medical examination report for commercial driver fitness determination, dated May 21, 2001 (3 pages)
Marriage certificate, dated May 18. 2002
Forty-four pages from Applicant's service record

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
         Inactive: ANG(DEP)                940122 - 940520  COG
 USMCR(J)                 940527 - 941212  COG
Period of Service Under Review :
Date of Enlistment: 941213               Date of Discharge: 981023

 Length of Service (years, months, days):

         Active: 03 10 11         Does not exclude lost time
         Inactive: None

 Age at Entry: 19                          Years Contracted: 4

 Education Level: 12                        AFQT: 48

 Highest Rank: LCpl

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 4.2 (10)             Conduct: 4.0 (10)

 Military Decorations: None

 Unit/Campaign/Service Awards: NDSM, SSDR

 Days of Unauthorized Absence: 57: (28)950919-951016; (15)970212-970226;
                   (14)970416-970429
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 :

940526:  Applicant briefed upon, and certified understanding of, Marine Corps policy concerning illegal use of drugs.

950808:  Counseled for deficiencies in performance and conduct (Failure to be at his appointed place of duty on time; failure to obey orders given by NCOs in charge; a demonstrated lackadaisical attitude; and disrespect and disregard for authority). Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

950919:  Applicant in unauthorized absence status from this date through 951016 (28 days)

951023:  Summary Court-Martial.
         Charge I: violation of UCMJ Article 86 (2 specs):
         Specification 1: Unauthorized absence for a period of 29 days.
         Specification 2: Unauthorized absence for 1 day (apprehended).
         Charge II: violation of UCMJ Article 92:
         Specification: Violation of company order.
         Finding: to Charge I and the specifications thereunder, guilty. To Charge II and the specification thereunder, not guilty.
         Sentence: Forfeiture of 2/3 pay for 1 month, confinement for 30 days, and reduction to Pvt. Forfeiture suspended for 6 months.
         CA action 951030: Sentence approved and ordered executed.

951023:  Applicant to confinement as part of SCM; released 951107 (14 days).

970211:  Applicant to unauthorized absence at 0801 on this date until 0700 on 970227 (15 days/ surrendered).

970312:  NJP for violation of UCMJ, Article 86:
         Specification: Unauthorized absence from 0801 on 970211 to 0700 on 970227 (15 days/surrendered).
         Awarded forfeiture of $505.00 per month for 2 months, restriction and extra duties for 45 days, reduction to PFC. Forfeiture suspended for 6 months. Not appealed.

970415:  Applicant to unauthorized absence at 1801 on this date until 2215 on 970429 (14 days/ surrendered).

970501:  Vacate suspended forfeiture awarded at CO's NJP dated 970312.

971009:  Special Court-Martial.
         Charge I: violation of UCMJ Article 112a:
         Specification: Wrongfully use methamphetamine on 970729.
         Findings: to Charge I and specification thereunder, guilty.
         Sentence: Forfeiture of $600.00 for 1 month, confinement for 30 days, restriction for 2 months, and a bad conduct discharge.
         CA 980113: Sentence approved and ordered executed except for the bad conduct discharge.

971009:  Applicant to confinement as part of sentence of SPCM; released 971101 (23 days).

971119:  Applicant to voluntary appellate leave.

980113:  Applicant's appellate leave status changed from voluntary to involuntary.

980512:  Naval Clemency & Parole Board denied clemency and recommended the Applicant be offered VA treatment.

980612:  Navy-Marine Corps Court of Military Review: Affirmed findings and sentence.

980630:  Navy and Marine Corps Appellate Leave Activity offers Applicant 30-day in-patient treatment for substance abuse at a military medical facility or Veterans Administration Hospital.

981023:  Special Court-Martial Supplemental Order: UCMJ Article 71(c) 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 981023 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).

Issues 1 and 2: The Applicant contends that his post-service conduct, to include employment, family life, and the fact that he no longer drinks nor uses drugs, should be considered in the recharacterization of his discharge. 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 civilian life subsequent to leaving the service. The NDRB is author-ized, however, to consider outstanding post-service factors in the recharacterization of a discharge to the extent that such matters provide a basis for a more thorough understand-ing of the Applicant’s performance and conduct during the period of service under review. 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, certification of non-involvement with civil authorities, and credible evidence of a substance-free lifestyle are examples of verifiable documents that may be provided to receive consideration for relief based on post-service conduct. While the Board recognizes the effort made by the Applicant to improve his life, there is not sufficient documentation at this time for the Board to consider an upgrade to his discharge. Relief on this basis is denied.

Issue 3: The Applicant, as an issue of propriety, contends that after conclusion of his special court-martial, he should have been returned to full duty as the subsequent Special Court-Martial Order and Action states "...the sentence is approved and, except for the bad conduct discharge, ordered executed." In cases of special courts-martial where a punitive discharge was awarded, usual procedures are the convening authority normally delays the awarding of a punitive discharge while the record of trial is forwarded to the Navy-Marine Corps Appellate Review Activity for review by the U.S. Navy-Marine Corps Court of Criminal Appeals. This was the case with the Applicant who was placed on appellate leave until his sentence, to include the bad conduct discharge, was affirmed by appellate review authority. Upon affirmation by the appellate review authority, the bad conduct discharge was properly executed. Relief on this basis is therefore denied.

The Applicant further contends that his overall service record is sufficient to warrant a characterization of general (under honorable conditions). With respect to special courts-martial tried under the Uniform Code of Military Justice, the actions of the NDRB are restricted to upgrades based upon clemency only. In addition, all relevant and material details stated in those judicial proceedings are presumed by the NDRB to be established facts. As such, the Applicant's particular case was considered under the pertinent standards of equity to determine if clemency was warranted. The service records that the Board reviewed showed no mitigating or extenuating factors sufficient to offset the seriousness of the offenses for which the discharge was awarded. Relief on this basis is therefore denied.

The Applicant is advised that changes to reenlistment codes are beyond the authority of the NDRB and that he should address this issue to the Board for Correction of Naval Records.

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. The Applicant can provide additional documentation to support further post-service accomplishments at that time. 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 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 “ 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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