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NAVY | DRB | 2004 Marine | MD04-01479
Original file (MD04-01479.rtf) Auto-classification: Denied


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

ex-Pvt, USMC
Docket No. MD04-01479

Applicant’s Request
The application for discharge review was received on 20040921. 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 20050210. 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/As a result of a courts-martial (SPCM) – Other, authority: MARCORSEPMAN Par. 1105.


PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

 Applicant’s issues, as stated on the application:

1. “To improve eligibility to receive medical benefits.”
Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant’s DD Form 214
Ltr from C_ W_, undated, unsigned
Ltr from J_ M_, undated, unsigned

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
         Inactive: USMCR(J)                900212 - 900529  COG

 Period of Service Under Review :
Date of Enlistment: 900530               Date of Discharge: 930115

 Length of Service (years, months, days):

         Active: 02 07 17                  [Does not exclude lost time]
         Inactive: None

 Age at Entry: 19                          Years Contracted: 4

Education Level: 12                        AFQT: 68

 Highest Rank: PFC                          MOS: 0811

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 4.3 (1)                       Conduct: 4.3 (1)

 Military Decorations: None

 Unit/Campaign/Service Awards: NDSM, SSDR

 Days of Unauthorized Absence: None

 Character, Narrative Reason, and Authority of Discharge (at time of issuance):

BAD CONDUCT DISCHARGE/As a result of a courts-martial (SPCM) - Other, authority: MARCORSEPMAN Par. 1105.

 Chronological Listing of Significant Service Events :

910503:  NJP for violation of UCMJ, Article 134: Drunk and disorderly.
         Award: Forfeiture of $197 per month for 1 month(s), restriction and extra duty for 14 days, forf susp 3 mos. No indication of appeal in the record.

910715:  Applicant discharged from Alcohol Dependency treatment. Remarks: “Patient refused the use of Antabuse… the patient remained non-complaint with program rules and treatment recommendations and was discharged as a treatment failure.”
         Discharge diagnosis: Alcohol Dependence.
910819:  Counseled. [Refusal to attend or failure of Level III treatment places him in violation of paragraph 6209.4 of MARCORSEPMAN and could be processed for discharge.]

911004:  NJP for violation of UCMJ, Article 86: UA from 2200 910912 to 0730 910914, SNM failed to keep DNCO apprised of his wearabouts. Article 92: In that SNM broke battalion liberty risk order by not being in his room at 2200 hrs on 910912-910914.
Award: Restriction and extra duties for 45 days, RIR to Pvt. Not appealed.
911121:  Special Court-Martial.
         Charge I: violation of the UCMJ, Article 123a:
         Specifications 1 and 2: Make and utter share drafts with the intent to defraud, totaling $2,061.75 from 910531 to 910714.
         Findings: to Charge I and specifications thereunder, guilty. Sentence: Fine of $502.00 for two months, confinement for two months and a bad conduct discharge.
         CA 920120: Sentence approved and ordered executed except for the BCD.
        
911121:  To confinement.

920110:  From confinement, to duty.

920330:  NJP for violation of UCMJ, Article 111: Apprehended by MP’s for DWI. Article 134: SNM’s drunkenness was of a nature to bring discredit to the U.S. Government.
 Award: Forf $394.00 for 2 mos, restr for 60 das.
920407:  To appellate leave.

920521:  NC&PB denied clemency and restoration, but directed the [Applicant] be offered 30 days inpatient substance abuse treatment at a VA Medical Center prior to discharge [extracted from SJA ltr of 921111].

920630:  NMCCMR: Affirmed findings and sentence.

921111:  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 19930115 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. 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. In addition, there is no requirement or law that grants recharacterization solely on the issue of obtaining veterans’ benefits and this issue does not serve to provide a foundation upon which the Board can grant relief. 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 COURTS-MARTIAL , of the Marine Corps Separation and Retirement Manual, (MCO P1900.16D), effective 27 Jun 89 until 17 Aug 95.

 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 123a, checks, intent to deceive.
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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