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NAVY | DRB | 2004 Marine | MD04-01293
Original file (MD04-01293.rtf) Auto-classification: Denied


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

ex-Pvt, USMC
Docket No. MD04-01293

Applicant’s Request
The application for discharge review was received on 20040806. The Applicant requests the characterization of service received at the time of discharge be changed to honorable. The Applicant requests a documentary record 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:

 “Dear DRB, The following issues are the reasons I believe my discharge should be upgraded to a Honorable. If you disagree, please explain in detail why you disagree. The presumption of regularity that might normally permit you to assume that the service acted correctly in characterizing my service as less than honorable does not apply to my case because of the evidence I am submitting.

 1
Clemency is warranted because it is an injustice for me to continue to suffer the adverse effects and consequences of a bad conduct discharge. I feel that the issues I am presenting here demonstrate that I was given excessive punishment for one isolated incident where there was no history of NJP and, in fact, I had a spotless record.

 2
My average Proficiency and Conduct marks, prior to my court martial, were above average. This is shown on my MCTFS Record Of Service Page dated 02/24/98.
 (see attachment #2).
Additionally, during the promotion period right before my UA, (which was 03/01/98), I had the time in service and in grade for E-5. I was recommended and had the required composite score of 1667, but never received my promotion.
 (see attachment #3).

 3
I received a number of awards and decorations shown on my Combat History/Expeditions/Awards Record .
 (see attachment #4).

 I have included copies of the two (2) Meritorious Masts so you may view the content of the awards. (see attachments #5 and 6).

 I have also included Letters of Commendation from some of my fellow Marines I worked with attesting to their views of my character, ethics and general impressions that I had left on them.
 (see attachments #7, 8 and 9).

 4
My Record of Promotions show that I was a good service member .
(see attachments #10 and 11).

Also, I became a Collateral Duty lnspecter ( CDI) and Shop Supervisor of the Airframes/Hydraulics shop just months after arriving at VMA 211. The Staff NCO of that shop claims to have lost my entire Training Jacket which contained the official records.
Fortunately, I have a letter from a MSgt R.C. L_ attesting to my being a CDI which goes hand in hand with the Shop Supervisor billet.
 (see attachment #7).

 5
I have no record of NJP.

6
My Record of Court Martial convictions indicated no offenses until this one.

7
The Military Judge at my Court Martial was made aware of the Sentence Limitations portion of my Pretrial Agreement .
My attorney dismissed my complaint regarding this when I brought it up to him.
 (see attachment #12).
(see attachment #13, pages 10 thru 16, and highlighted portion on page 18).

 8
My ability to serve was impaired due to family and personal problems. I needed to go to my home state to find my daughter who had disappeared with her mother. I had to physically be in the state for 6 to 12 months to handle the legal problems. My command refused my request to transfer to a recruiting billet allowing me to handle the problem.

 9
My ability to serve was impaired due to financial problems. My maximum court ordered child support amount was $160.00 per month. However, for eleven (11) months, my pay was garnished between $431.00 and $492.00 per month. The S-1 would not correct the problem. I even spoke to base legal with no result. There are state and federal statutes to set a limit on the maximum amount an individual can be garnished otherwise non-custodial parents would have little or no incentive to work.
 (see attachment #14 pages 1 thru 10).

 10
My command lied during a congressional inquiry regarding my pay problems. They stated that, “a meeting was set up with the appropriate individual “that never happened. In fact, nothing happened at all. They led the Senator to believe it would be handled at the squadron level. I initiated the inquiry because my squadron didn’t and wouldn’t handle the problem in the first place. I have included what correspondence I have between the Senator Hatfield and myself.
 (see attachment #15 pages 1 thru 10)

 11
My ability to serve was impaired due to emotional and mental difficulties .
 (see attachment #16 pages 1 thru 3) .”
Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant’s DD Form 214
Thirteen pages from Applicant’s service record
Twelve pages from Applicant’s military pay record
Letter from Applicant to Senator H_
Four letters from Senator H_
Letter from DFAS to Senator H_
Psychological evaluation

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
         Inactive: USMCR(J)                930407 - 930606  COG

 Period of Service Under Review :
Date of Enlistment: 930607               Date of Discharge: 000411

 Length of Service (years, months, days):

         Active: 06 10 05
         Inactive: None

 Age at Entry: 27                          Years Contracted: 6

 Education Level: 11                        AFQT: 88

 Highest Rank: Cpl                          MOS: 6055

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 4.4 (15)                      Conduct: 4.0 (16)

 Military Decorations: None

 Unit/Campaign/Service Awards: GCM, MM (2), AE, SD, MUC, ND

 Days of Unauthorized Absence: 298

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 :

941130:  Counseled for deficiencies in performance and conduct. [PFT failure on 941125.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
961004:  BMC, MCAS Yuma, AZ diagnosed the Applicant as alcohol dependent.

 971201:  Counseled for deficiencies in performance and conduct. [Violation of UCMJ, Article 86.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
981205:  To pre-trial confinement.

990119:  From confinement, to duty.
         
990120:  Special Court-Martial.
         Charge I: violation of the UCMJ, Article 86: UA from 980206 until apprehended on 981203.
         Findings: to Charge I and specification thereunder, guilty.
         Sentence: Confinement for 47 days, reduction to E-1, and a bad conduct discharge.
         CA 990806: Sentence approved and ordered executed except for the BCD.
        
990217:  To appellate leave.

000114:  NMCCMR: Affirmed findings and sentence.

000411:  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 20000411 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).

Issues 1-11. 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. Neither the positive aspects of the Applicant’s service nor the Applicant’s personal difficulties he experienced at the time warranted clemency for the Applicant’s misconduct. The NDRB found the Applicant’s service record absent of any mitigating or extenuating factors sufficient to offset the seriousness of the offense 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 P1900.16E), 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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