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USMC | DRB | 2005_Marine | MD0500067
Original file (MD0500067.rtf) Auto-classification: Denied


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



ex-PVT, USMC
Docket No. MD05-00067

Applicant’s Request
The application for discharge review was received on 20041006. The Applicant requests the characterization of service received at the time of discharge be changed to general/under honorable conditions. The Applicant requests a personal appearance hearing discharge review before the Board in the Washington National Capital Region. The Applicant did not list any representative on the DD Form 293.

Decision

A personal appearance hearing discharge review was conducted in Washington, D.C. on 20050930. 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 3-2 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

1. “The incident occurred during Operation Desert Storm, which was a very stressful time.”

2. “I was very young and the time and didn’t have the discipline to handle my responsibly as far as respecting authority and following orders.”

3. “I am very active in my community, I work with the local school children, helping them developed reading and writing skills and help them stay clear of criminal activities.”

4. “After the incident with Sgt C_, I asked him to forgive me for my misconduct, he did, I worked with my unit incident free a month before my court martial.”
Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Character Reference Letter from Deacon L_ T_ Sr., dated July 23, 2004
Applicant’s DD Form 214
Reference Letter from S_ A. R_, dated October 20, 2004
Employment Reference Letter from Rev. Dr. R_ W. W_ III, dated December, 2004
Character Reference Letter from Rev. V_ B. W_ Sr., dated December 22, 2004
Reference Letter from G_ F_, dated November 9, 2004
Reference Letter from C_ E. B_, dated November 8, 2004
Reference Letter from C_ Q_, dated November 8, 2004
Employment Reference Letter from G_ T_, undated
Learning Leaders ID card for 2005-2006
Reference Letter from S_ S_ Y_ M_, undated
Copy of newspaper article, undated
Reference Letter from R_ R_, dated October 11, 2005
Reference Letter from G_ Y_, undated
Unofficial student transcript, printed January 11, 1999
Reference Letter from T_ W_, dated October 11, 2005
Reference Letter from A_ T_, dated October 5, 2005
Employment Reference Letter from B_ C_, dated October 3, 2005
Service Related Documents (21 pages)

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
         Inactive: USMCR(J)                871008 - 881003  COG

 Period of Service Under Review :
Date of Enlistment: 881004               Date of Discharge: 941123

 Length of Service (years, months, days):

         Active: 06 01 20                  [Does not exclude lost time]
         Inactive: None

 Age at Entry: 18                          Years Contracted: 4

Education Level: 12                        AFQT: 36

 Highest Rank: LCpl                         MOS: 2512

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 4.1 (8)                       Conduct: 3.8 (8)

 Military Decorations: None

 Unit/Campaign/Service Awards: RMB, SSDR, NDSM,

Days of Unauthorized Absence: 1

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 :

900613:  Summary Court-Martial.
         Charge I: violation of the UCMJ, Article 86 (2 Specifications),
         Specification 1: Without authority absence himself from his unit, to wit: CommPlt, HQCo, 3dMar, located on board the USS Belleau Wood from 0600, 900406 until 0600, 900407(1day); Specification 2: At or about 0930, 900531, without authority, failed to go at the time prescribed to place of duty, to wit: a man overboard drill formation in the CommPlt area (frame 46-49). Charge II: violation of the UCMJ, Article 91: (2 Specifications), Specification 1: Disobeyed a lawful order from SSgt R. L. W___ III, not to move out of the berthing area on 900424, Specification 2: Disrespectful language toward SSgt R. L. W___ III, on 900501 by saying to him, “F_ no, I am a grown man and I can go where I want, when I want and anywhere I desire.” Charge III: violation of the UCMJ, Article 134: Drunk and disorderly on or about 900407.
         Finding: to Charge I and specification 1 thereunder, guilty. To Charge II and specification 1 and 2 thereunder, guilty. To Charge III and specification 1 thereunder, guilty.
         Sentence: Forfeiture of $270.00 per month for one month, restriction for 14 days, reduced to E-2.
         CA action 900613: Sentence approved and ordered executed.
        
910202:  Special Court-Martial.
         Charge I: violation of the UCMJ, Article 92: On or about 910115, willfully disobeyed the order of Col J. H. A___, USMC, by wrongfully chambering a round in his M16A service rifle. Charge II: violation of the UCMJ, Article 128: On or about 910115, assault Sgt P. J. C___, USMC, by brandishing at him a dangerous weapon, to wit: a loaded M16A2 service rifle.
         Findings: to Charge I and specification 1 thereunder, guilty. To Charge II and specification 1 thereunder, guilty.
         Sentence: Confinement for 6 months, forfeiture of $500.00 pay per month for 6 months, reduction to E-1, and a bad conduct discharge.
         CA 910305: Approved and, with the exception of the BCD, ordered executed, but that part of the sentence extending to all unexecuted confinements is suspended for 12 months from the date of trial, at which time, unless the suspension is sooner vacated, the suspended part of the sentence shall be remitted without further action.

910610:  To appellate leave.

930617:  NC&PB denied clemency and restoration.

940606:  NMCCMR: Affirmed findings and sentence.

941123:  SSPCMO: Article 71c, UCMJ, having been complied with, bad conduct discharge ordered executed.
000928:  NDRB documentary record review Docket Number MD00-00416 conducted. Determination: Discharge proper and equitable; relief not warranted.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19941123 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).

Issues 1, 2 and 4: 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. The Applicant petitioned for clemency based on the stressfulness of serving during Desert Storm, the Applicant’s youth during his service and his contention that he served his unit incident-free after his special court-martial. There is no evidence in the record, nor has the Applicant produced any evidence, to support the contention that the Applicant served without incident following the acts which precipitated the Applicant’s special court-martial. The Applicant may feel that the stressful situation under which the Applicant’s violations of the UCMJ occurred and the Applicant’s immaturity were the underlying causes of his misconduct, however the Board found 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.

Issue 3. The Applicant contends that he is very active in his community and that his post-service accomplishments merit clemency. Verifiable proof of any post-service accomplishments should be provided in order for the Applicant to claim post-service conduct and behavior as a reason to upgrade a less than honorable discharge. The Board commends the Applicant for his post-service accomplishments, including consistent service as a volunteer, steadfastness to family responsibilities and consistent employment. However, the Board found that the Applicant’s proof of post-service behavior insufficient for an upgrade of characterization. The Board allowed the Applicant 15-days after the his personal appearance hearing to submit documentation to support his post-service conduct and achievements. The Applicant was further instructed that his review would benefit from a criminal-records check and any other documentation that would further enlighten the Board on the details of his post-service volunteer activities. The Applicant did provide additional documentation on his post-service behavior. However, the Applicant could have provided more thorough documentation of his volunteer activities, to include substantiated documentation describing the complete history of the Applicant’s volunteer efforts and thorough documentation of the Applicant’s child-support payments. Additionally, the Applicant failed to provide a records check certifying non-involvement with civil authorities. After a thorough review of the Applicant’s record and documented post-service accomplishments, the Board determined that clemency based on post-service behavior is not warranted. Relief denied.

The following is provided for the edification of the Applicant. The Applicant has exhausted his opportunities for review by the NDRB. 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 92, failure to obey and order/regulation and Article 128, assault.

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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