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NAVY | DRB | 2004 Marine | MD04-01172
Original file (MD04-01172.rtf) Auto-classification: Denied


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


ex-Pvt, USMC
Docket No. MD04-01172

Applicant’s Request
The application for discharge review was received on 20040715. The Applicant requests the characterization of service received at the time of discharge be changed to uncharacterized. 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:
“I have been out of the military for about 7 years now. I have been an upstanding citizen in every community I have lived in since 1997. I would like for the board to review my discharge and upgrade it to other than honorable, or general under honorable conditions. I would like to serve my country as a national guard reservist. As well as go into law enforcement. I am currently looking into a career in law enforcement. My current discharge records will definitely hinder my ability to be a hireable graduate of any kind of law enforcement degree. I have also been very patiently waiting for military regulations to change, so that I can serve my country as a national guard reservist. I was nineteen at the time of my discharge, and have paid a heavy price to have made the foolish decisions that I made back then. This is why I am asking with all my heart, and duty to my country to have a second chance. What ever your decision my be, I will go with whatever as a board feel is in the best interest of the United States of America. Thank you for your time.”

Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Copy of DD Form 214
Department of Veterans Affairs form 21-4138, dtd 5-21-04
 Letter from S_J_, dtd March 12, 2002
 Letter from M_H_M_, dtd 4/12/04

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: USMC              None
          Inactive: USMCR(J)                941022 - 950618  COG
Period of Service Under Review :
Date of Enlistment: 950619               Date of Discharge: 970109

 Length of Service (years, months, days):
         Active: 01 04 13
          Inactive: None
Age at Entry: 18                          Years Contracted: 4

Education Level: 12                        AFQT: 53
Highest Rank: Pvt                          MOS: 9971

 Final Enlisted Performance Evaluation Averages (number of marks):
Proficiency: NMF*                          Conduct: NMF*

 Military Decorations: None
Unit/Campaign/Service Awards: RMB, NDSM

 Days of Unauthorized Absence: 78

* No marks found in the service record.
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 :

951024:  Applicant to UA (AWOL) since 1800, 951016.
951116:  Applicant from UA (AWOL) at 2240, 951113 when the Marine surrendered to SACo, H &S Bn, SOI, MCB, CamPen, CA.
951122:  Applicant to UA (AWOL) since 1800, 951114.

 960111:  Applicant apprehended by civil authorities on 960103 at 0900. Returned to military control 960105 (1345). Delivered to SAC CO, HQSVCBN, SOI, MCB Camp Pendleton, CA..

960214:  Special Court-Martial.
         Charge I: violation of the UCMJ, Article 86 (2 Specifications):
         Specification 1: Did, on 16 Oct 95, without authority, absent himself from his organization until 13 Nov 95.
         Specification 2: Did, on 14 Nov 95, without authority, absent himself from his organization until apprehended on 3 Jan 96.
         Findings: to Charge I and specification 1 thereunder, guilty. To specification 2 under Charge I, guilty.
         Sentence: BCD, confinement for 6 months, and forfeiture of $300.00 pay per month for 4 months.
         CA 960510: Sentence approved and ordered executed except for the BCD. Execution of that portion of the sentence adjudging confinement in excess of 75 days is suspended for a period of 12 months from the date of this action, at which time, unless sooner vacated, the suspended portion of the sentence will be remitted without further action. The accused will be credited 42 days against the sentence to confinement.
        
960306:  To appellate leave.

961011:  NMCCCA: Affirmed findings and sentence.

 970107:  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 19970109 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).

In response to the Applicant’s issues, relevant and material facts stated in a court-martial specification are presumed by the NDRB to be established facts. 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 and that the sentence awarded the Applicant at his court-martial was appropriate for the offenses he committed. Relief denied.

There is no law, or regulation, which provides that an unfavorable discharge may be upgraded based solely on the passage of time, or good conduct in civilian life, subsequent to leaving the service. The NDRB is authorized to consider outstanding post-service factors in the recharacterization of a discharge, to the extent that such matters provide a basis for a more thorough understanding of the Applicant’s performance and conduct during the period of service under review. After a complete review of the entire record, including the evidence submitted by the Applicant, the Board determined that his discharge was appropriate and that his evidence of post-service conduct was found not to mitigate the conduct for which he was discharged. Relief denied.

Since the NDRB has no jurisdiction over reenlistment, reentry, or reinstatement into the Navy, Marine Corps, or any other of the Armed Forces, NDRB is not authorized to change a reenlistment code. An unfavorable “RE” code is, in itself, not a bar to reenlistment. A request for a waiver can be submitted during the processing of a formal application for reenlistment through a recruiter. Only the Board for Correction of Naval Records (BCNR) can make changes to reenlistment codes.

T he NDRB has no authority to upgrade a discharge for the sole purpose of enhancing employment opportunities. Regulations limit the Board’s review to a determination on the propriety and equity of the discharge.





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. The Applicant can provide documentation to support any claims of post-service accomplishments or any other evidence related to his discharge at that time. 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 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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