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USMC | DRB | 2002_Marine | MD02-01279
Original file (MD02-01279.rtf) Auto-classification: Denied


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

ex-PVT, USMC
Docket No. MD02-01279

Applicant’s Request
The application for discharge review, received 20020906, 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 listed American Legion as his representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20030812. After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, no impropriety or inequity in the characterization of the applicant’s service was discovered by the NDRB. 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 USC 874 (b) (UCMJ, Article 74) and in accordance with SECNAVINST 5420.174C, enclosure (1), paragraph 2.24 and 9.3, this former member requests the Board’s clemency relief with up-grade of his characterization of service 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:
Copy of DD Form 214
Reference Letter from Sister J_ A. F_, President Emerita, Molloy College dated July 12, 2002 (2 pages)
Letter from Applicant dated April 8, 2002
Copy of Notification of Trial Results dated April 15, 1996
Copy of Special Court-Martial Supplemental Order No. 97-538 dated March 19, 1997
Transcript from Nassau Community College
Reference Letter from LT R_ S_ dated August 12, 2002
Reference Letter from K_ S_ dated August 9, 2002
Reference Letter from Parent’s dated August 3, 2002
 Reference Letter from R_ A. W_ dated August 1, 2002
Letter from Applicant dated July 19, 2003

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: USMC              None
         Inactive: USMCR(J)                940311 - 950102  COG

 Period of Service Under Review :
Date of Enlistment: 950103               Date of Discharge: 970319

 Length of Service (years, months, days):

         Active: 01 06 17
         Inactive: None

 Age at Entry: 19                          Years Contracted: 4

Education Level: 12                        AFQT: 37

 Highest Rank: PVT

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 4.3 (2)                       Conduct: 4.3 (2)

 Military Decorations: None

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

Days of Unauthorized Absence: 203

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 :

950804:  Declared a deserter and dropped from the rolls.

960127:  Applicant apprehended by Nassau Police Dept. New York on 960127 (0633). Issued orders and transferred to Security BN, MCB Quantico, VA.

960127:  Pre-Trial restraint from 960127 to 960220       

960221:  Special Court-Martial.
         Charge I: violation of the UCMJ, Article 86, Specification 1: Did, on about 950705, without authority absent himself from his organization until apprehended on or about 960127 (203 days/A).
         Findings: to Charge I and specification 1 thereunder, guilty. To specification 2 under Charge I, not guilty. To Charge II and specification thereunder, not guilty.
         Sentence: Confinement for 45 days, and a bad conduct discharge.
         CA 960328: Sentence approved and ordered executed except for the BCD.

960221:  Applicant waived right to clemency review by the Naval Clemency and Parole Board.

960304:  From confinement, to duty.

960531:  To appellate leave.

961220:  NMCCMR: Affirmed findings and sentence.

970319:  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 19970319 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 and post-service documentation provided devoid of any mitigating or extenuating factors sufficient to offset the seriousness of the offense for which the discharge was awarded. Relief denied. Additionally, there is no law, or regulation, which provides that an unfavorable discharge may be upgraded based solely on the passage of time, to enhance employment opportunities, or for 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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