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NAVY | DRB | 2004 Marine | MD0401446
Original file (MD0401446.rtf) Auto-classification: Denied


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

ex-PVT, USMC
Docket No. MD04-01446

Applicant’s Request
The application for discharge review was received on 20040914. The Applicant requests his characterization of service received at the time of discharge changed to honorable. The Applicant requests a documentary record discharge review. The Applicant did not list a representative on the DD Form 293. In the acknowledgement letter the applicant was informed that he was approaching the 15 year point for review by this Board and was encouraged to attend a personal appearance hearing in the Washington, DC area. The Applicant did not respond.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20050629. After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, the Board determined that clemency was not warranted and that the characterization of discharge was appropriate. 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.” 15 yrs a go I made a bad decision as a young NCO of Marines. In turn I was punished by 6-mths confinement, 2/3rds loss of pay and a bad conduct discharge. Since my departure from the Marines I have not made the mistakes I have made in the Corps. I am a truck-driver, over-the-road. I lead a decent, respectable, and good life. I am now 40 yrs of age. I would like to become a correctional officer but cannot do so with the discharge I now have. I paid dearly throughout the years for my actions in the Marines. Please do not let me continue to suffer and grant me an honorable discharge so that I may achieve greater things in life. Thank you for your time and consideration.”
Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Letter from Applicant
Applicant’s DD Form 214

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: USMC              810731-850822    HON
         Inactive: USMCR(J)                None

 Period of Service Under Review :
Date of Enlistment: 850823               Date of Discharge: 890912

 Length of Service (years, months, days):

         Active: 03 07 22 (Does exclude lost time)
         Inactive: None

 Age at Entry: 21                          Years Contracted: 4

Education Level: 10                        AFQT: 56

 Highest Rank: CPL                          MOS: 0311

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 4.5 (10)                      Conduct: 4.1 (10)

 Military Decorations: None

 Unit/Campaign/Service Awards: RSB, GCM, SSDR(2), MM, LOA, SSRB, MMPB

 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 :

850823:  Reenlisted at 3rdBn, 9thMar, 1stMarDiv for 6 years.

 880519:  Special Court-Martial.
         Charge I: violation of the UCMJ, Article 112a,
         Specification: Wrongful use of cocaine between 871008 and 871015.
         Additional Charge: violation of the UCMJ, Article 134,
         Specification: On 871015, wrongfully solicit Sgt S___ by requesting alteration of urine sample.
         Findings: to Charge I and specification thereunder, guilty. To Additional Charge and specification thereunder, guilty.
         Sentence: Confinement for 6 months, forfeiture of $234.00 pay per month for 6 months, reduction to E-1, and a bad conduct discharge.
                 
880519:  To confinement, sentence of SPCM.

880907:  CA, sentence approved and ordered executed except for the BCD

881014:  From confinement.

881014:  To involuntary appellate leave.

890213:  NC&PB denied clemency and restoration.

890331:  NMCCMR: Certified copy of decision mailed to Applicant on 890421.

890815:  SSPCMO: Article 71c, UCMJ, having been complied with, Bad Conduct discharge ordered executed.

890912:  Discharged.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19890912 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: 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 evidence of record did not contain sufficient mitigating or extenuating factors to offset the seriousness of the offenses for which the discharge was awarded. 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.

The Board has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities; this issue does not serve to provide a foundation upon which the Board can grant relief. The Applicant’s issue is without merit. Relief denied.

The following if provided for the edification of the Applicant. The NDRB has no authority to provide a personal appearance hearing since Applicant’s discharge occurred more than 15 years ago. The Applicant may, however, petition the Board for Correction of Naval Records (BCNR), 2 Navy Annex, Washington, DC 20370-5100, concerning a change in the characterization of naval service, if he desires further review of his case.


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 112a, wrongful use of a controlled substance and Article 134, solicitation.
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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