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NAVY | DRB | 2004 Marine | MD04-00789
Original file (MD04-00789.rtf) Auto-classification: Denied


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

ex-Pvt, USMC
Docket No. MD04-00789

Applicant’s Request
The application for discharge review was received on 20040413. The Applicant requests the characterization of service received at the time of discharge be changed to general/under honorable conditions. The Applicant requests a personal appearance before the Board in Washington, D.C. In the acknowledgement letter, the Applicant was informed the Board first conducts a documentary review prior to any personal appearance hearing. The Applicant did not list any representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20041008. 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 have been out of the Marine Corps, and back home in Des Moines, Iowa, since 2001 July 25. I have been a law abiding citizen since then, and have never been in trouble w/civilian law in my life. I am applying for an upgrade because I feel that I have had enough time to prove my good conduct, and I am truly sorry & regretful for my discharge.
 Since being out of the Marines I have been working 3 steady jobs, which include FedEx (where I will be getting more hours & advancing to a higher position in a few months), PETsMART, & my mom’s in-home daycare. I completed a semester of community college in the field of Criminal Justice, & in the near future I plan on continuing my education in this field. I want a better chance at getting into a professional career, & feel that in order to pursue a career in Criminal Justice I would need a discharge upgrade. My first goal, however, is to fulfill my duty to my country and re-enlist in the military as soon as possible.
- The Letter of Explanation is basically explaining what went wrong and why I did what I did. It also explains my regret and what I plan to do if my discharge is upgraded. An upgrade would definitely change my life for the better and able me to pursue more career wise in the military and in civilian life.”
Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Copy of DD Form 214
City of Des Moines arrest record (3 pp.)
College progress report
Letter from Applicant
Letter of explanation #2
FBI record search
Two earnings statements

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
         Inactive: USMCR(J)                000428 - 000924  COG

 Period of Service Under Review :
Date of Enlistment: 000925               Date of Discharge: 030123

 Length of Service (years, months, days):

         Active: 02 03 29
         Inactive: None

 Age at Entry: 19                          Years Contracted: 4

Education Level: 12                        AFQT: 54
Highest Rank: PFC                          MOS: 0621                

Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 3.6 (2)                       Conduct: 3.3 (2)

 Military Decorations: None

 Unit/Campaign/Service Awards: RMB

Days of Unauthorized Absence: 43

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 :
        
010720:  Special Court-Martial.
         Charge I: violation of the UCMJ, Article 86 (2 Specifications):
         Specification 1: UA from 010423 to 010514.
         Specification 2: UA from 010524 to 010613.
         Findings: to Charge I and specification 1 thereunder, guilty. To specification 2 under Charge I, guilty.
         Sentence: Forfeiture of $600.00 for two months, confinement for 60 days, reduction to E-1, and a bad conduct discharge.
         CA 011108: Sentence approved and ordered executed except for the BCD. All confinement in excess of time served is suspended for 12 months.
010725:  To appellate leave.

020814:  NMCCMR: Affirmed findings and sentence.

030115:  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 20030123 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. Relief denied.
The NDRB has no authority to change reenlistment codes or make recommendations to permit reenlistment, reentry, or reinstatement into the Naval Service or any other branch of the Armed Forces. Neither a less than fully honorable discharge nor an unfavorable “RE” code is, in itself, a bar to reenlistment. A request for waiver is normally done only during the processing of a formal application for enlistment through a recruiter.

The Applicant is reminded that she remains eligible for a personal appearance hearing, provided an application is received at the NDRB within 15 years from the date of her 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.
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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