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NAVY | DRB | 2004 Marine | MD04-00563
Original file (MD04-00563.rtf) Auto-classification: Denied


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

ex-PVT, USMC
Docket No. MD04-00563

Applicant’s Request
The application for discharge review was received on 20040218. The Applicant requests the characterization of service received at the time of discharge be changed to honorable. The Applicant requests a personal appearance hearing discharge review before a traveling panel. The Applicant did not list any representative on the DD Form 293. In the acknowledgement letter, the Applicant was informed that the Naval Discharge Review Board (NDRB) first conducts a documentary review prior to any personal appearance hearing, also advised that the Naval Discharge Review Board (NDRB) does not travel, and that all hearings are held in the Washington National Capital Region.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20050304. 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

 No issues were submitted by the Applicant.

Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant’s DD Form 214
Letter from Dept of Navy to the Honorable H_ W_, dated December 29, 2003
(2 pages)
Letter from Applicant dated September 22, 2003


PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
         Inactive: USMCR(J)                931001 - 931114  COG

 Period of Service Under Review :
Date of Enlistment: 931115               Date of Discharge: 951019

 Length of Service (years, months, days):

         Active: 01 02 16 (Does not include lost time)
         Inactive: None

 Age at Entry: 18                          Years Contracted: 4

 Education Level: 12                        AFQT: 42

 Highest Rank: PFC                          MOS: 9971

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: None                          Conduct: 0.0 (2)

 Military Decorations: None

 Unit/Campaign/Service Awards: REB, NDSM

 Days of Unauthorized Absence: 183


 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 :

940320:  To UA at 1800.

940419:  Declared a deserter.

940701:  From UA, surrendered at 1325.

940706:  To UA at 1800.

940805:  Declared a deserter.

940927:  From UA at 1300, when apprehended by Los Lunas Police Department, NM.

940928:  To pre-trial confinement.
        
941107:  Special Court-Martial.
         Charge I: violation of the UCMJ, Article 86 (2 Specifications):
         Specification 1: Did on or about 940320, without authority, absent himself from his organization until 940701 (101 days/S).
         Specification 2: Did on or about 940706, without authority, absent himself from his organization until apprehended on 940927 (82 days/A).
         Findings: to Charge I and specifications 1 and 2 thereunder, guilty.
         Sentence: Forfeiture of $200.00 pay per month for 3 months, confinement for 5 months, reduction to E-1, and a bad conduct discharge.
         CA 950203: Sentence approved and, except for the bad conduct discharge, ordered executed, but the execution of that portion of the sentence adjudging confinement in excess of 90 days is suspended for a period of 12 months from date of this action, at which time, unless sooner vacated, the suspended confinement will be remitted without further action. The accused was credited 41 days against the sentence to confinement.

941210:  From confinement, to duty.

941221:  To appellate leave.

950519:  NMCCMR: Affirmed findings and sentence.

951006:  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 19951019 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).

The Applicant introduced no decisional issues for consideration by the Board. The Applicant was found guilty at court-martial of two specifications of unauthorized absence. 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. The Applicant’s case was considered under the pertinent standards of equity to determine if any factors in this particular case merited clemency. After a thorough review of the Applicant’s record and documents submitted, the Board determined that clemency was not warranted and that the sentence awarded the Applicant at his court-martial was appropriate for the offenses he committed. 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 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, unauthorized absence for more than 30 days.
C. Secretary of the Navy Instruction 5420.174D of 22December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part II, 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 “ http://Boards.law.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:

                  Secretary of the Navy    Council of Review Boards
                   Attn: Naval Discharge Review Board
                   720 Kennon Street SE Rm 309
                  Washington Navy Yard DC 20374-5023

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