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USMC | DRB | 2003_Marine | MD03-00982
Original file (MD03-00982.rtf) Auto-classification: Denied


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

ex-Pvt, USMC
Docket No. MD03-00982

Applicant’s Request
The application for discharge review was received on 20030518. The Applicant requests the characterization of service received at the time of discharge be changed to honorable. The Applicant requests a personal appearance discharge review before a traveling panel. The Applicant designated the Department of Veteran Service, Decatur, GA as the representative on the DD Form 293. In the acknowledgement letter, the Applicant was informed that the Naval Discharge Review Board first conducts a documentary record review prior to any personal appearance hearing, and also that the Board does not travel; all hearings are held in the Washington, D.C. area.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20040408. 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 stated
Applicant’s issues, as stated on the application:

 1. “The following issues are the reason I believe my discharge should be upgraded to Honorable Discharge. I experienced some personal problem that impaired my ability to serve on when I had suffered the loss of my Grandmother Ms. A_ K. M_. Then that brought other problem; because I was, and currently am married with a family and childcare. My current spouse and I were renting residents in the house my belonging to my grandmother during the same period I came back from deployment. After coming from Qatar, I didn’t receive like everyone else awards and decorations, that’s because death was in the family and I was given leave to be with my family. Returning to Camp Pendleton I felt and was consider a marked Marine. My follow troops where told not to speak to me because of what happened. I went to a company level office hours that where held by First Sgt B_, and my rights where given. First Sgt B_ had me to turn over my military I.D, License, uniforms, dog tags, boots, shoes, ribbon, badges, and other personal items I spent and paid out of pocket and I received none those items to this day.

There as a detainee 222 my command abused its authority when they sent Marines of my Command 7 Motors Battalion to pursued me to just accept the punishment what and sign documentation that says that I am guilty of all that I was charged with instead of giving me a chance to talk with someone that could have given me better assistance. Then after 30 days I finally got a lawyer that I thought would have my Command show some compassion. I served a total of seventy-five days in the base brig. Marines are always given the privilege of going to TAP classes for processing out of the Marine Corp. Once again 7 Motors Battalion C Company influenced the Administrators. On the third of February of 1997 I was given Authorized Voluntary leave for an indefinite period of time to await review of a Punitive. Discharge. I received ten days later a letter that stated my leave status had been changed from Voluntary to Involuntary which lead me to believe that I was in for a hardship period of time.

My family and I have suffered long enough under these conditions, and I am asking of these things to be restored.

1. Damages Emotional distress.
2. Damages under Civil Rights, Complaints, amending to include, for punitive damages.
3. Damages that effect my efforts of Labor Relations.
4. Abuse of process of forms and contents return.
5. Involuntary presence privileges and exemptions.
6. Evidence (Seal of Court) copies of Discharge from BCD to Other than Honorable.
7. Process of service under Constitutional Law Due process.
8. Process Voluntary appearance, necessity of process before leaving Camp Pendleton.
9. Subject of Rights of having Personal Property.

10. Possession (Acquisition and Transfer.)

11. Property Negligence Duty provide safe means.

12. Medical Evidence.

13. Interest Awards and decorations.

14. Discharge of employee for filing claims for exemplary damages.

15. Retaliation for rights filing claims.

16. Emotional Compensation.

17. Payment Compromise and settlement full settlement.

I believe that my family and I have suffered long enough by me not having the proper and sufficient paperwork so that I might stay gainfully employed having the proper DD214 with the correct changes. I'm respectfully asking the Naval Council of Personal Boards the evidence I am submitting in my case that I may receive an Honorable Discharge with a Seal of Endorsement. I would like also having the awards and decorations, Good conduct that I was not awarded when I severed in operation Native Fury. I also would like to have my Imperium Neptuni Regis with a seal of Endorsement. The period of time I spent on the U.S.S. Rushmore (LSD-47) at Appearing Equator at Longitude 44 001 44.9” East. The age 32 to my knowledge before I get that age I want to be consider either to be Reservist or giving that chance to sever soberly. These are the things I’m asking for so that I once again can become a more productive citizen.

Sincerely Yours, S_ V_ G_ (Signed by the Applicant )”
Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Copy of DD Form 214 (Member – 4 copy)
Applicant’s Résumé
CO, 1 st FSSG MARFORPAC, ltr to Applicant dtd May 30, 1997
 Applicant’s Voluntary Leave Awaiting Appellate Review acknowledgement ltr of Feb 3, 1997
 Copy of DD Form 214 (Member –1 copy)
Applicant’s High School Diploma dtd June 7, 1991
Applicant’s Permission Statement of Dec 2, 2002 to Congressman J_ L_ to receive confidential information
Applicant’s Permission Statement of Mar 5, 1998 to Congressman J_ L_ to receive confidential information
Applicant’s VA claim form of Apr 7, 2003
Applicant’s Application for Education Benefits dtd Oct 27, 2000 (3 pages)

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
         Inactive: USMCR(J)                930209 - 930316  COG

 Period of Service Under Review :
Date of Enlistment: 930317               Date of Discharge: 971118

 Length of Service (years, months, days):

         Active: 04 08 02 (Doesn’t exclude confinement and appellate leave time)
         Inactive: None

 Age at Entry: 20                          Years Contracted: 4

Education Level: 12                        AFQT: 35

 Highest Rank: LCpl

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 4.0 (11)             Conduct: 3.7 (11)

 Military Decorations: None

 Unit/Campaign/Service Awards: SWASM (w/1 Star), NDSM, NUC, AFEM (Op Southern Watch), SSDR, CoA

Days of Unauthorized Absence: None

 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 :

950307:  Acknowledged eligibility but not recommended for promotion to Corporal for March 1995, because of previous Page 11 entry dated 940506 concerning disrespect towards a Non-Commissioned Officer.
950726:  NJP for violation of UCMJ, Article 86: Unauthorized absence from MSSG 15, 1 st FSSG during the period 1500 through 1630 13July95.
         Award: Forfeiture of $250 pay per month for 2 months (suspended for 6 months), restriction and extra duty for 45 days, reduction to E-2. No indication of appeal in the record.

961115:  To confinement.
970107:  Special Court-Martial.
         Charge I: violation of the UCMJ, Article 112a.
         Specification: Did, on 29 Oct 96, wrongfully use marijuana.
         Charge II: violation of the UCMJ, Article 134 (2 Specs).
         Specification 1: Did, on 29 Oct 96, wrongfully offer to Cpl F. W_, USMC, two checks or bonds of some value, w/intent to influence the actions of Cpl W_ w/respect to an official matter in which the U.S. was and is interested, to wit: the urinalysis test previously given that day to LCpl G_ (Applicant).
         Specification 2: Did, on 29 Oct 96, wrongfully solicit GySgt R.L. D_, USMC, to be derelict in is duties as the 7 th MTBn SACO, by allowing LCpl G_ (Applicant) to submit a new urine sample, destroy the one given previously that day, and inform LCpl G_ (Applicant) of the test results before anyone else.
         Findings: Charge I and specification thereunder, guilty.
Charge II and specifications 1 and 2 thereunder, guilty.
         Sentence: Confinement for 5 months, forfeiture of $600.00 pay per month for 5 months, reduction to E-1, and a bad conduct discharge.
         CA 970217: Sentence approved and, except for the BCD, ordered executed, but execution of that portion of the sentence adjudging confinement in excess of 90 days is suspended for a period of 12 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. The accused will be credited 53 days against the sentence to confinement.

970128:  From confinement, to duty.

970209:  To appellate leave.

970827:  NMCCCA: Affirmed findings and sentence.

971118:  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 19971118 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).

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 absent of any mitigating or extenuating factors sufficient to offset the seriousness of the offenses for which the discharge was awarded. 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 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 112a, illegal drug use; and Article 134, wrongful solicitation.
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.


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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