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USMC | DRB | 2005_Marine | MD0500032
Original file (MD0500032.rtf) Auto-classification: Denied


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

ex-Pvt, USMC
Docket No. MD05-00032

Applicant’s Request
The application for discharge review was received on 20040930. The Applicant requested the characterization of service received at the time of discharge be changed to honorable. The Applicant requested a documentary record review. The Applicant did not list a representative on his 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. “I’m trying to go to school and to have a clear record in the military. I’m doing a little school and waiting for the Police Academy. I’m now a security officer. I love to study long and hard. I’m just trying to clear what I have done in the past. I donate my blood to those who needs, I donate a lot anything to help out. Marines had made me into a man wish I’m proud to be, I enjoyed being enlisted in the armed forces (marines).
I thank the military for making me a better person and better understanding of the world and myself. Also thanks for reviewing my application.”
Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
2 pages from Applicant’s SRB

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active:                            None                       HON
         Inactive: USMCR (J)               000718 - 000827  COG

 Period of Service Under Review :
Date of Enlistment: 000828               Date of Discharge: 030328

 Length of Service (years, months, days):

         Active: 01 09 27 (Accounts for lost time.)
         Inactive: None

 Age at Entry: 19                          Years Contracted: 4

 Education Level: 12                        AFQT: NFR*

 Highest Rank: PFC                          MOS: 0311 (Rifleman)

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 2.8 (**)                      Conduct: 2.5 (**)

 Military Decorations: None

 Unit/Campaign/Service Awards: None

 Days of Unauthorized Absence: (190) 20010723 – 20020114

         * Not Found in Record  
** Extracted from Special Court-Martial record of trial.

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 :

010808:  Applicant declared a deserter on 010803 having been an unauthorized absentee since 0730, 010703 from 1 st Bn, 7 th MAR, Twenty-nine Palms, CA.

020123:  Applicant apprehended by civil authorities on 020115 (1528) at Las Cruces, NM. Returned to military control 020115 (1730). Delivered to SepsCo, HqSptBn, MCB Camp Pendleton, CA.

020215:  Special Court-Martial.
         Charge I: violation of the UCMJ, Article 86:
         Specification: Did, on or about 3 Jul 01, absent himself from his unit and did remain so until he was apprehended on or about 15 Jan 02.
         Findings: to Charge I and the specification thereunder, guilt
         Sentence: Bad conduct discharge, red to E-1, forf of $700.00 per month for 3 months, an 80 days confinement.
         CA 020323: Sentence approved and ordered executed except for the BCD.

020215:  To confinement, Sentence of SPCM.

020305:  From confinement, to duty.

020306:  To appellate leave.

020913:  NMCCMR: Affirmed findings and sentence.

030305:  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 20030328 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: R elevant and material details 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 tried under the Uniform Code of Military Justice, the action of the NDRB is restricted to upgrades based upon clemency only. The Applicant's case was considered under the pertinent standards of equity to determine if any factors in his particular case merited clemency. The service records the Board reviewed showed no mitigating or extenuating factors sufficient to offset the seriousness of the offenses for which the discharge was awarded. Relief is therefore denied.

The Board has no authority to upgrade a discharge for the sole purpose of enhancing employment opportunities and t he Veterans Administration determines eligibility for post-service benefits not the Navy Discharge Review Board (NDRB). In the Applicant’s case, the Board discovered no impropriety or inequity; thereby, considering the Applicant’s discharge proper and equitable. The Board cannot grant relief on the basis of these issues.
The following is provided for the Applicant’s edification. There is no law or regulation that provides for an unfavorable discharge to be upgraded based solely on the passage of time or good conduct in the civilian life subsequent to leaving the service. However, the NDRB is authorized to consider post-service factors in the recharacterization of a discharge. Outstanding post-service conduct, 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 may be considered. Verifiable proof of post-service accomplishments must be provided in order for the Applicant to claim post-service conduct and behavior as a reason to upgrade a less than honorable discharge. Evidence of continuing educational pursuits, an employment record, documentation of community service, certification of non-involvement with civil authorities, and credible evidence of a substance-free lifestyle are examples of verifiable documents that may be provided to receive consideration for relief based on post-service conduct. The Applicant did not provided sufficient documentation for the Board to consider an upgrade.
 
The Applicant is reminded that she remains eligible for a personal appearance hearing, provided an application is received at the NDRB within 15 years from the date of her 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 86, Unauthorized absence.
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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