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NAVY | DRB | 2004 Marine | MD04-00560
Original file (MD04-00560.rtf) Auto-classification: Denied


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

ex-PVT, USMC
Docket No. MD04-00560

Applicant’s Request
The application for discharge review was received on 20040223. The Applicant requests the characterization of service received at the time of discharge be changed to honorable or general/under honorable conditions. The Applicant requests 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 20041001. 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. “Dear Sir/Madam: Ever since I saw my brother returning from bootcamp in his dress blues, I wanted to be a Marine. And in 1990 my company went out of business and gave me that chance. To demonstrate how motivated I was, I went to bootcamp at a ripe age of 25 years. I went from earning $20/hr to earning pennies. And as you can see from my records, I adapted well to the physical training as well as the vocational training.

I then met my future wife. I did not know that she was addicted to cocaine until it was too late. I began using this drug and it devastated the next 10 years of my life.

I was prosecuted by the Marine Corps for having the drug in my system and writing bad checks (to keep the drugs coming). I have repaid all the bad checks and have rebuilt my life.

Enclosed are documents to support this fact. I am not concerned with obtaining benefits from the Marine Corps. I only want my honor restored. I want to erase the only blemish from my record that I profoundly care about.

Drug abuse was the foundation of my discharge, and I have clearly fought hard to remedy my problem.

I thank you for reviewing my case.”

Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Copy of DD Form 214
Diploma, Technical Career Institutes, Associate in Applied Science
Personal Recommendation frm R_ L_
Character Reference frm R_ S_

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
         Inactive: USMCR(J)                920106 - 920113  COG

 Period of Service Under Review :
Date of Enlistment: 920114               Date of Discharge: 941121

 Length of Service (years, months, days):

         Active: 02 10 07 [does not exclude lost time]
         Inactive: None

 Age at Entry: 25                          Years Contracted: 4

Education Level: 12                        AFQT: No marks found

 Highest Rank: PFC                          MOS: 1141

Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 4.6 (3)                       Conduct: 3.6 (3)

 Military Decorations: None

 Unit/Campaign/Service Awards: NDSM

Days of Unauthorized Absence: 23

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 :

921130:  Special Court-Martial.
         Charge I: violation of the UCMJ, Article 112a.
         Specification: Did at an unknown location, from 920627 to about 920706, wrongfully use cocaine.
         Finding: to Charge I and the specification thereunder, guilty.
         Sentence: Forfeiture of $100.00 for five months, reduced to E-1, confinement for 50 das.
         CA action 930201: Sentence approved and ordered executed.
930217:  Applicant to UA.

930218:  Applicant from UA [1 da/s].

930226:  Applicant to UA.

930304:  Applicant from UA [7 das/s].

930305:  Applicant to UA.

930320:  Applicant from UA [15 das/s].

 930326:  Psychological Screening:
         Axis I: Polysubstance Abuse, Narcissistic Traits
         Axis II: Anti-Social, PD NOS

930629:  Special Court-Martial.
         Charge I: violation of the UCMJ, Article 86 (3 Specifications):
         Specification 1: UA from 930217 to 930218.
         Specification 2: UA from 930226 to 930304.
         Specification 3: UA from 960305 to 930320.
         Charge II: violation of the UCMJ, Article 112a.
         Specification: between about 930220 and about 930305 wrongfully use cocaine.
 Charge III: Spec 1 with intent to defraud, wrongfully and unlawfully make and utter fifteen (15) checks.
          Findings: to Charge I and specifications thereunder, guilty. To Charge II and specification thereunder, guilty. Charge III: Withdrawn.
         Sentence: Fine of $500.00 for four months, five months confinement, and a bad conduct discharge.
         CA 930629: Sentence approved and ordered executed except for the BCD will be executed extending to cnft in excess of 97 das & forf of $500 pay per mo for 4 mos. Is susp for a per of 6 mos. fr the date of trial.

940506:  NMCCMR: Affirmed findings and sentence.

941121:  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 19941121 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, with respect to a discharge adjudged by a court-martial case, the action of the NDRB is restricted to upgrades based on clemency. Clemency is an act of leniency that reduces the severity of the punishment imposed. After a thorough review of the Applicant’s record, issues submitted, and post service accomplishments, the Board determined that clemency was not warranted.

The Applicant remains eligible for a personal appearance hearing, provided an application is received, at the NDRB, within 15 years from the date of 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, wrongful use of a controlled substance.
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      
                  Washington, D.C. 20374-5023     



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