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USMC | DRB | 2003_Marine | MD03-00636
Original file (MD03-00636.rtf) Auto-classification: Denied


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

ex-Pvt, USMC
Docket No. MD03-00636

Applicant’s Request
The application for discharge review was received on 20030303. The Applicant requests the characterization of service received at the time of discharge be changed to general/under honorable conditions. The Applicant requests a documentary record discharge review. The Applicant listed the Veterans of Foreign Wars as his representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20040114. 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/As a result of a courts-martial (SPCM) – Other, authority: MARCORSEPMAN Par. 1105.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated
Applicant’s issues, as stated on the application:
1. “I am writing this letter to request an upgrade of my military discharge. During my stay in the Marine Corps I went through some very stressful times. Granted, who doesn’t go through the branch of “Semper Fi” and are not stressed. For that reason and the ones I’m going to mentioned, maybe a breeze of understanding will blow my was. After graduating from college with a bachelor, I found myself becoming more and more depressed. Why? My father had recently passed and I felt incumbent to make sure things continued to go well financially and publicly. I truly believe that at that time I became burden with more than I should have. It was not enough for me to just continue to have faith and do things my father would be please of… I felt the need to improve my mother’s lifestyle. You see, when my father died, my mother assumed all debts, including his. I quickly learn that life owes no one anything. The more I tried to advance and be successful, the more things did not work out. I felt that need to push forward regardless of failure. This was taught by my father who also was in the Marine Corps. All of this reach for success teamed up with slow progress. That’s when failure and depression coreped into my mind. This was a perfect recipe for drugs and Satan. Drugs became a fixture for me. They provide me with an outlet when I couldn’t understand why life was being so mean and bitter to me. Little did I know at that time that that was (trials) only a part of life. Nevertheless, after being consumed with negative influences and yes, drugs – I knew I couldn’t continue on this trek either. I was hurting my love one’s and destroying myself. That when I felt I needed to do anything to succeed. I moved to Dallas from Mobile. I stayed with a brother and unfortunately, he was doing the same thing. I jump out of the frying pan into the skittle! It was then that I thought that maybe some tough discipline and even a career in the military might just be was I needed. Not any branch would do. It would have to be the Marine Corps. Aside from every mentioned, this would also give me a connection to my deceased father who died unexpectantly just before I finished college.
 So off to the Marine Corp I went. But little did I know about the “pile theory.” “I you are a pile of shit over here, you may be a pile of shit over there.” My negative habits followed me after doing so good for at least 2 ½ - 3 years. Since being discharged I have accept responsibility for my actions. I pray that you will look at my awards from my job. Just the fact that I am writing this letter is a testament to my character now. Please consider my request and as always Semper Fi!

P.S. no Drugs or Alcohol or trouble with the law. I pray that I can and I know I will continue this path. That’s because I only have to please God, family and Self!”

 Additional issues submitted by Applicant’s counsel/representative (VETERANS OF FOREIGN WARS):
2. “IAW SECNAV Instructions 5420174C of 22 August 1984 (MDR 1984), enclosure (1), chapter 9, paragraph 9.3, Equity of discharge, we ak for all submitted evidence and statements of the applicant be carefully considered in addition to the DD 293 application on file. The applicant has stated his contentions and is a COMBAT VETERAN OF THE GULF WAR.

The Veterans of Foreign Wars US express purpose in providing this review, and any other submittals or opinions of record, is to aid the applicant in resolving any improprieties or inequities in the character and basis for discharge. After reviewing all evidence, we ask the Board to resolve any doubt in favor of the applicant and to grant the action requested as entitled under Title 10 U.S.C., Section 1553.”

 Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Copy of DD Form 214
Copy of DD Form 215
Photo
Certificate of Accomplishment dated May 31, 2001
Certificate for Outstanding Young Man of America, 31 st Anniversary Ed., 1998
Thank you note from C_ W_
Certificate of Attendance dated July 20, 2001
Certificate of Attendance dated May 18, 2001
Certificate for Outstanding Young Man of America, 30th Anniversary Ed., 1996
Letter of recommendation from G_ T_
Copy of plaque for HCBS Case Manager of the Year, 1996
Five year service award from Mobile Mental Health Center, Inc. for period of July 1993 to July 1998

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
         Inactive: USMCR(J)                890613 - 891211  COG

 Period of Service Under Review :
Date of Enlistment: 891212               Date of Discharge: 940712

 Length of Service (years, months, days):

         Active: 04 07 01 (Does not exclude lost time)
         Inactive: None

 Age at Entry: 27                          Years Contracted: 4

Education Level: 12                        AFQT: 47

 Highest Rank: LCpl

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 4.1 (7)                       Conduct: 4.1 (7)

 Military Decorations: None

 Unit/Campaign/Service Awards: Rifle Expert Badge, NDSM, SSDR, SWASM w/3 Stars, KLM, MUC, LoA

Days of Unauthorized Absence: 1

Character, Narrative Reason, and Authority of Discharge (at time of issuance):

BAD CONDUCT DISCHARGE/As a result of a courts-martial (SPCM) - other, authority: MARCORSEPMAN Par. 1105.

 Chronological Listing of Significant Service Events :

901211:  NJP for violation of UCMJ, Article 117, At Maingate CLNC, 17 Nov 90, wrongfully used provoking words: “You know I have a license, you dumb, white motherfucker,” towards LCpl B_; violation of UCMJ Article 134: Wrongfully used threatening language towards LCpl B_, a sentry in the execution of his duties: “Don’t put your hands on me.”
         Awarded forfeiture of $405.00 per month for 2 months, restriction and extra duty for 30 days (suspended for 6 months). No indication of appeal in the record.
910802:  Counseled for deficiencies in performance and conduct. [Disrespect to a NCO and lack of maturity.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

920428:  Counseled for deficiencies in performance and conduct. [Lack of initiative, lack of maturity, and inability to manage his personal affairs so they do not interfere with his work.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

 920518:  NJP for violation of UCMJ, Article 86: UA from 0715-2000, 920501.
 Awarded forfeiture of $482.00 per month for 2 months, restriction for 60 days (forfeiture and restriction suspended for 6 months). Not appealed.
920914:  NJP for violation of UCMJ, Article 86: UA from 0630-1155, 920731; violation of UCMJ, Article 107: made a false official statement to Sgt H_: “I was in jail this morning.”
 Awarded forfeiture of $440.00 per month for 2 months, restriction and extra duties for 45 days, reduction to E-2. Appealed. No record of decision on appeal.
         
921118:  Special Court-Martial.
         Charge I: violation of the UCMJ, Article 112a.
         Specification: Did on or about 920918, wrongfully possess one rock of cocaine.
         Additional Charge I: violation of the UCMJ, Article 107.
         Specification: False official statement to NIS agent: “I did not purchase the crack cocaine for my own personal use.”
         Additional Charge II: violation of the UCMJ, Article 134:
 Specification: Break restriction.
          Findings: to Charge I and specification 1 thereunder, guilty. To Additional Charges I and II, guilty.
         Sentence: Fine of $300.00, confinement for 4 months, reduction to E-1, and a bad conduct discharge.
         CA 930409: Sentence approved and ordered executed except for the BCD. Confinement in excess of 90 days is suspended for 12 months.
        
921210:  Applicant waived NC&PB clemency review.

931124:  NMCCMR: Affirmed findings and sentence.
940712:  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 19940712 with a bad conduct discharge which was the sentence adjudged by a properly convened special court-martial. That sentence was subsequently approved by both the convening and appellate review authorities (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. 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. Clemency is an act of leniency that reduces the severity of the punishment imposed. The NDRB found the Applicant’s service record and documentation provided by the Applicant absent of any mitigating or extenuating factors sufficient to offset the seriousness of the offenses for which the discharge was awarded. Relief 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 COURTS-MARTIAL , of the Marine Corps Separation and Retirement Manual, (MCO P1900.16D), effective 27 Jun 89 until 17 Aug 95.

 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, illegal drug use; Article 107, false official statement; and Article 134, break restriction.
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      
                  Washington, D.C. 20374-5023     

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