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NAVY | DRB | 2004 Marine | MD04-01100
Original file (MD04-01100.rtf) Auto-classification: Denied


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

ex-Pvt, USMC
Docket No. MD04-01100

Applicant’s Request
The application for discharge review was received on 20040622. 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 representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20041222. 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. “Dear Sir or Madam:

I am writing this letter to so that I may be consider for an upgrade from a Bad Conduct Discharge to and Other than Honorable or General Discharge. I have served 5 years on appellant leave. And during that time I have not dis-honored myself in any way with the Marine Corps or the Military in general.

In the past 5 years I have move to Florida and started my own business. I own a limousine business and 1 associate myself with many people from all over the country that come to the south Florida for vacation.

I have learned that my family is very important part of my life and my mistakes where the worst mistakes that I have made in life. But there is so much for me to live for knows and I feel that having a BAD CONDUCT DISCHARE discourages me for my future.

I would like the review to consider and upgrade to my discharge my history as a Marine for 12 years was OUTSTANDING. My family is still together and we are very happy.

Sincerely, ”
Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Copy of DD Form 214 (2)
Two pages from Applicant’s service record

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: USMC              850705 - 890428  HON
                                             890509 – 921029  HON
                                             921030 – 960731  HON
         Inactive: USMCR(J)                841212 - 850704  COG

 Period of Service Under Review :
Date of Enlistment: 960801                Date of Discharge: 030605

 Length of Service (years, months, days):

         Active: 07 10 05 (Does not exclude lost time and appellate leave)
         Inactive: None

 Age at Entry: 30                          Years Contracted: 4

Education Level: 12                        AFQT: 31

 Highest Rank: SSgt                         MOS: 1371

 Final Enlisted Performance Evaluation Averages :

All Fitness Reports were available for review

 Military Decorations: None

 Unit/Campaign/Service Awards: CC (5), GCM (3), SSDR (2), LA, NDSM, SASM, KLM, MUC (2), NUC, CAR, NAM, KLM, LC

 Days of Unauthorized Absence: None

 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 :
        
980311:  Special Court-Martial.
         Charge I: violation of the UCMJ, Article 92 (2 Specifications):
         Specification 1: On diverse occasions between April 1995 and March 1996, at or near NYC, NY, wrongfully engaged in a physical relationship with LCpl S_, while the said LCpl was a member of the DEP or a prospective recruit.
         Specification 2: On diverse occasions between March 1996 and November 1996, at or near NYC, NY, wrongfully engaged in a physical relationship with Pvt Y_, while the said Pvt was a member of the DEP or a prospective recruit.
         Charge II: violation of the UCMJ, Article 125 (2 Specifications).
         Specification 1: On diverse occasions between April 1995 and January 1997, at or near NYC, NY, and on board CLNC committed sodomy with LCpl S_.
         Specification 2: On diverse occasions between March 1996 and November 1996, at or near NYC, NY, committed sodomy with Pvt Y_,
         Charge III: violation of the UCMJ, Article 134 (2 Specifications).
         Specification 1: On diverse occasions while a married man, wrongfully have sexual intercourse with LCpl S_.
         Specification 2: On diverse occasions while a married man, wrongfully have sexual intercourse with LCpl Y_.
         Findings: to all Charges and specifications thereunder, guilty.
         Sentence: Confinement for 150 days, reduction to E-1, and a bad conduct discharge.
         CA 980923: Sentence approved and ordered executed except for the BCD. Confinement in excess of 30 days is suspended for 12 months
        
980312:  To confinement, sentence of SPCM.

980405:  From confinement, to duty.

980408:  To appellate leave.

990520:  NC&PB denied clemency and restoration.

991014:  NMCCMR: Affirmed findings and sentence.
030210:  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 20030605 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 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 P1900.16F), 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 92, disobey a lawful order; Article 125, sodomy; and Article 134, wrongful sexual intercourse.
C. Secretary of the Navy Instruction 5420.174D of 22 December 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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