Search Decisions

Decision Text

USMC | DRB | 2002_Marine | MD02-01033
Original file (MD02-01033.rtf) Auto-classification: Denied


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

ex-Pvt, USMC
Docket No. MD02-01033

Applicant’s Request
The application for discharge review, received 020710, requested that the characterization of service on the discharge be changed to honorable or 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 030515. 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. I believe I was unfairly given a bad conduct discharge due to the fact that I was subjected to an environment that was full of drug use, alcohol abuse and worst of all drug trafficking, contrary to the court papers. I did attempt to notify my chain of command regarding these unhealthy activities. I was told this "was to go no further, and to keep my mouth closed." I failed to take this advice and paid the price by being severely hazed. I have a lot of respect for honorable marines and other military personnel, however while I was in the fleet, very few of the marines in my platoon had much honor or discipline. After repeated attempts to inform my chain of command of this behavior I took the responsibility into my own hands. I began receiving threats and consequently found myself in four fights in a two week period. I determined that my only real option was to go AWOL. After my court date they decided that they would not discharge me even though that was my request. I believe this shows that I was an outstanding marine. Not wanting to go back to the same environment I went AWOL again once court was over. The price I paid was 3 months in the brig. I learned many lessons from my experience. Since being released from jail I have received an Associates degree in biology and should graduate with a Bachelor's degree in both Human Biology and Business Finance within a year. I have never done any drugs and have no criminal record. An upgrade to honorable would greatly assist me in my business endeavors, I take full responsibility for my decision to go AWOL and I believe that I have paid the price. Having a Bad Conduct Discharge has caused me many problems and cost me many jobs over the past 6 years or so. When I went AWOL I had the best intentions, I just handled the situation incorrectly, and as an adult I now know this. I didn't want to be in a bad environment and I removed myself from it with good intentions. Please review the documents and I would greatly appreciate it if my discharge was upgraded to an Honorable Discharge.
Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
SPCM (Stipulation of Facts) dated April 2, 1996 (2 pages)

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: USMC              None
         Inactive: USMCR(J)                941026 - 950129  COG

 Period of Service Under Review :
Date of Enlistment: 950130               Date of Discharge: 970909

 Length of Service (years, months, days):

         Active: 01 10 07
         Inactive: None

 Age at Entry: 19                          Years Contracted: 4

Education Level: 12                        AFQT: 56

 Highest Rank: PFC

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 3.0 (5)                       Conduct: 2.1 (7)

 Military Decorations: None

 Unit/Campaign/Service Awards: NDSM, Rifle Sharpshooter Badge

Days of Unauthorized Absence: 276

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 :

950920:  Declared a deserter.

 960403:  Special Court-Martial.
         Charge I: violation of the UCMJ, Article 86.
         Specification: Unauthorized absence from 950821 until 960103 (132 days).
         Finding: to Charge I and the specification thereunder, guilty.
         Sentence: Confinement for 45 days, forfeiture of $583.00 pay per month for 1 month, reduced to E-1.
         CA action 960611: Sentence approved and ordered executed [Extracted from SJA's memorandum dated December 13, 1996].
        
960503:  Declared a deserter.

961004:  Special Court-Martial.
         Charge I: violation of the UCMJ, Article 86, Specification: Did, on or about 960403, without authority, absent himself from his unit until he was apprehended on 960826 (144 days).
         Findings: to Charge I and specification thereunder, guilty.
         Sentence: Confinement for 100 days, forfeiture of $583.00 pay per month for 3 months, and a bad conduct discharge.
         CA 961219: Sentence approved and, except for the bad conduct discharge executed, but execution of that portion of the sentence adjudging confinement in excess of 60 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.
        
961107:  To appellate leave.

970613:  NMCCMR: Affirmed findings and sentence.

970909:  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 970909 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. 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. 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      


Similar Decisions

  • USMC | DRB | 2003_Marine | MD03-00268

    Original file (MD03-00268.rtf) Auto-classification: Denied

    PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW Discussion The Applicant was discharged on 19970709 with a bad conduct discharge which was the sentence adjudged by special court-martial that was determined to be legal and proper by appellate review authority. 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).In the Applicant’s issue 1, the Board...

  • USMC | DRB | 2002_Marine | MD02-00862

    Original file (MD02-00862.rtf) Auto-classification: Denied

    971031: U.S. Navy-Marine Corps Court of Criminal Appeals affirms the findings and sentence of the Special Court-Martial 990823: Navy and Marine Corps Appellate Leave Activity issues Special Court-Martial Supplemental Order stating that, Article 71(c), UCMJ, having been complied with, the Bad Conduct discharge is ordered executed. 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...

  • NAVY | DRB | 2004 Marine | MD04-00548

    Original file (MD04-00548.rtf) Auto-classification: Denied

    MD04-00548 Applicant’s Request The application for discharge review was received on 20040212. PART I - APPLICANT’S ISSUES AND DOCUMENTATION 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 123a, checks, intent to deceive.C.

  • NAVY | DRB | 2004 Marine | MD04-00061

    Original file (MD04-00061.rtf) Auto-classification: Denied

    1105.. PART I - APPLICANT’S ISSUES AND DOCUMENTATION “Equity Issue: Based on our review of the evidentiary record and in accordance with 10 USC 874 (b) (UCMJ, Article 74) and SECNAVINST 5420.174C, enclosure (1), paragraphs 2.24 and 9.3, we request on behalf of this former member the Board’s clemency relief with up-grade of his characterization of service on the basis of his post-service conduct.In accordance with 32 C.F.R., section 724.166; SECNAVINST 5420.174C, enclosure (1), paragraph...

  • NAVY | DRB | 2004 Marine | MD04-00235

    Original file (MD04-00235.rtf) Auto-classification: Denied

    MD04-00235 Applicant’s Request The application for discharge review was received on 20031120. In June of 1998, I was given a Bad Conduct Discharge and afterwards spend 45 days in the Camp Pendleton Base Brig.I am requesting that the review board upgrade my discharge to an entry-level separation. At this time, the Applicant has not provided sufficient documentation for the Board to consider.The Applicantis reminded that he remains eligible for a personal appearance hearing, provided an...

  • USMC | DRB | 2002_Marine | MD02-00511

    Original file (MD02-00511.rtf) Auto-classification: Denied

    PART I - APPLICANT’S ISSUES AND DOCUMENTATION Semper Fi Documentation In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:DD Form 180 Copy of DD Form 214Eighteen pages from Applicant's service record PART II - SUMMARY OF SERVICE Prior Service (component, dates of service, type of discharge): Active: USMC 911029 - 951028 HON Inactive: USMCR(J) 910618 - 911028 COG Period of Service Under Review :Date of Enlistment: 960213 Date...

  • USMC | DRB | 2000_Marine | MD00-00472

    Original file (MD00-00472.rtf) Auto-classification: Denied

    PART I - APPLICANT’S ISSUES AND DOCUMENTATION Sentence: Confinement for 45 days, reduction to E-1, and a bad conduct discharge. 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.

  • USMC | DRB | 2003_Marine | MD03-00748

    Original file (MD03-00748.rtf) Auto-classification: Denied

    MD03-00748 Applicant’s Request The application for discharge review was received on 20030319. PART I - APPLICANT’S ISSUES AND DOCUMENTATION After coming home from boot camp, I have done whatever is possible to take care of my family.

  • USMC | DRB | 2001_Marine | MD01-00367

    Original file (MD01-00367.rtf) Auto-classification: Denied

    PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW Discussion The applicant was discharged on 901015 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, and affirmed in the legal chain of review and executed (A and B). 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...

  • USMC | DRB | 2002_Marine | MD02-00525

    Original file (MD02-00525.rtf) Auto-classification: Denied

    MD02-00525 Applicant’s Request The application for discharge review, received 020305, requested that the characterization of service and reason for discharge be changed. 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: USMC None Inactive: USMCR(J) 891006 - 900312 COG Period of Service Under...