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NAVY | DRB | 2004 Marine | MD04-00235
Original file (MD04-00235.rtf) Auto-classification: Denied


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

ex-Pvt, USMC
Docket No. MD04-00235

Applicant’s Request
The application for discharge review was received on 20031120. The Applicant requests the characterization of service received at the time of discharge be changed to entry-level separation or uncharacterized. The Applicant requests a documentary record review. The Applicant did not list a representative on his DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20040812. 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:

 Issue 1: “Dear Review Board:

 My name is G_ L_ M_ ( Applicant ), and I was given a Bad Conduct Discharge from the Marine Corps for Unauthorized Absence and refusal of a direct order from a Non Commissioned Officer.
I graduated High School when I was 16, and under pressure from my parents to do something with myself joined the Marines two days after I turned 17. At that age I was still very immature, reckless, and irresponsible. After I graduated from boot camp I learned that my grandmother had been diagnosed with terminal cancer, but I was unable to get leave to spend time with her before she died. Therefore, I decided to refuse a direct order from an NCO, and went UA. At not even 17 1/2 years old, I wasn’t thinking about my future or the consequences of my actions; all that mattered to me was being with my loved ones during this time. When I returned to the base I was placed in a legal holding unit, when shortly after my grandmother died. Unable to get leave I again went UA to attend her funeral and to be with the family. 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. I pray that the decisions I made before I was ever 18 don’t haunt me for the rest of my life. Please note that I have stayed out of trouble with the authorities, and have not had any brushes with the law since being discharged. Currently I am 22 years old, and am attending college, having just earned my AS in Math/Science. I am planning on continuing my education by attending a nursing program at a local community college. I am also employed there as a lab tutor for Human Anatomy and Human Biology Classes.
Also enclosed are copies of academic honors certificates I have recently earned as well as letters of character from two of my professors.

 Thank you for your consideration in this matter.
Sincerely,

 G_ L_ M_ ( Applicant ) ”
Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Copy of DD Form 214
Character reference, dtd 20 October 2003
Character reference, dtd 24 August 2003
Certificate of Achievement (President’s List), dtd 22 May 2002
Certificate of Achievement (Honor Roll), dtd 12 December 2002
Certificate of Achievement (President’s List), dtd 22 May 2003

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: USMC              None                       HON
         Inactive: USMCR (J)               980810 - 980824  COG

 Period of Service Under Review :
Date of Enlistment: 980825               Date of Discharge: 010126

 Length of Service (years, months, days):

         Active: 01 11 27 (Includes lost time.)
         Inactive: None

 Age at Entry: 17                          Years Contracted: 4

Education Level: 12                        AFQT: 71

 Highest Rank: Pvt

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 0.8 (Taken from Record of Trial.)  
Conduct: 0.5 (Taken from Record of Trial.)

 Military Decorations: None

 Unit/Campaign/Service Awards: None

Days of Unauthorized Absence: 118


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 :

981210:  Applicant to UA (AWOL), 981207.

981210:  Applicant from UA (AWOL), 981208 surrendered.

990108:  Applicant to UA (AWOL), 981214.

990115:  Applicant declared a deserter on 990113 having been an unauthorized absentee since 0601, 981214 from School of Infantry, Camp Pendleton, CA.

990322:  Applicant from UA (AWOL), 990319 surrendered.

990423:  Applicant to UA (AWOL), 990419.

990513:  Applicant from UA (AWOL), 990511 surrendered.

990624:  Special Court-Martial.
         Charge I: violation of the UCMJ, Article 86 (2 Specifications):
         Specification 1: Did, on or abt 14 Dec 98, w/o auth, abs himself from his unit, until on or abt 19 Mar 99.
         Specification 2: Did, on or abt 19 Apr 99, w/o auth, abs himself from his unit, until on or abt 11 May 99.
         Charge II: violation of the UCMJ, Article 91:
         Specification: Having received a lawful order fr … a SNCO, then known by the accused to be a SNCO … an order which it was his du to obey, did … willfully disobey the same.
         Findings: to Charge I and specification 1 thereunder, guilty. To specification 2 under Charge I, guilty. To Charge II and specification thereunder, guilty.
         Sentence: Fine of $600.00, restriction for 6 months, confinement for 75 days, and a bad conduct discharge.
         CA 990624: Sentence approved and ordered executed except for the BCD.

990624:  To confinement, Sentence of SPCM.

990730:  From confinement, to duty.

990811:  To appellate leave.

001017:  NMCCMR: Affirmed findings and sentence.

010126:  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 20010126 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: In response to the Applicant's issue, relevant and material details stated in a court-martial specification are presumed by the NDRB to be established facts. With respect to a discharge adjudged by a court-martial case tried under the Uniform Code of Military Justice, the action of the NDRB is restricted to upgrades based upon clemency only (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 service records the Board reviewed showed no mitigating or extenuating factors sufficient to offset the seriousness of the offenses for which the discharge was awarded. Relief is therefore denied.

 The Applicant contends his disciplinary problems were the result of stress caused by his grandmother’s illness and subsequent death of cancer, as well as his youth and immaturity. The NDRB recognizes that serving in the Marine Corps is challenging. Our country is fortunate to have men and women willing to endure the hardships and sacrifices required to serve our country. It must be noted most members of the Marine Corps serve honorably; thereby, earning an honorable discharge. In fairness to those Marines, commanders and separation authorities are tasked to ensure the undeserving receive no higher characterization than is due. The NDRB found that the Applicant's service was equitably characterized. Relief denied.
 
The following is provided for the edification of the Applicant. 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 the civilian life subsequent to leaving the service. However, the NDRB is authorized to consider post-service factors in the recharacteriza-tion of a discharge. Outstanding post-service conduct, to the extent that such matters provide a basis for a more thorough understanding of the Applicant's performance and conduct during the period of service under review may be considered. 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. At this time, the Applicant has not provided sufficient documentation for the Board to consider.
 
 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 010831.

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, Absence without leave; and Article 91, Insubordinate conduct .
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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