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NAVY | DRB | 2004 Marine | MD04-00632
Original file (MD04-00632.rtf) Auto-classification: Denied


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

ex-PVT, USMC
Docket No. MD04-00632

Applicant’s Request
The application for discharge review was received on 20040302. 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 did not list any his representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20040110. 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. “I am requesting an upgrade on my discharge so I can be able to enlist in the National Guard. I am asking for a second chance. I know what I did was wrong. But I sincerly think that a Bad Conduct discharge is too much for my mistake’s, which was U.A.
I am asking for a general discharge. The reason for it, is so I can enlist in the National Guard.”
Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Enrollment Agreement, Central Coast College, 040112
2d Recon Bn Command Screening Checklist (3 pages)
Applicant’s DD214

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
         Inactive: USMCR(J)                990920 - 991017  COG

 Period of Service Under Review :
Date of Enlistment: 991018               Date of Discharge: 021106

 Length of Service (years, months, days):

         Active: 03 00 20 [does not exclude lost time]
         Inactive: None

 Age at Entry: 18                          Years Contracted: 4

Education Level: 12                        AFQT: 41

 Highest Rank: LCpl                         MOS: 3533

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: NMF*                          Conduct: NMF
*No marks found in service record
 Military Decorations: None

 Unit/Campaign/Service Awards: None

Days of Unauthorized Absence: 180

 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 :

000621:  NJP for violation of UCMJ, Article 86 (2 specs):
 Specification 1: unauthorized absence 000420 to 000516 [16 days]
Specification 2: unauthorized absence 000529 to 000606 [7 days]
Awarded forfeiture of $263.00 per month for 1 months, restriction and
extra duties for 14 days. Restriction and extra duties susp 6 mos. Not appealed.
000621:  NJP for violation of UCMJ, Article 86, unauthorized absence 000703 to 000801 [30 days].
 Awarded forfeiture of $263.00 per month for 1 months, restriction and
extra duties for 14 days. Not appealed.
         
010924:  Special Court-Martial.
         Charge I: violation of the UCMJ, Article 86: Specification 1: did on or about 18 April 2001, absent himself and did remain so absent until he was apprehended on or about 23 August 2001 [127 days].
         Findings: to Charge I and specification 1 thereunder, guilty.
         Sentence: Fine of $695.00 for 3 months, confinement for 100 days, reduction to Pvt and a bad conduct discharge.
         CA 020322: Sentence approved and ordered executed except for the BCD.

020812:  NMCCA: Affirmed findings and sentence.

021028:  NAMALA: No petition to CAAF received, appellate review completed.

021101:  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 20021106 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. 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 evidence of record did not contain sufficient mitigating or extenuating factors to offset the seriousness of the offenses for which the discharge was awarded. In addition, the reason for discharge, convicted by special court-martial, is most appropriate. Relief denied.

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 COURT-MARTIAL , of the Marine Corps Separation and Retirement Manual, (MCO P1900.16F), effective 01 September 2001 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 86, unauthorized absence for more than 30 days.
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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