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USMC | DRB | 2005_Marine | MD0500100
Original file (MD0500100.rtf) Auto-classification: Denied


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

ex-PVT, USMC
Docket No. MD05-00100

Applicant’s Request
The application for discharge review was received on 20041020. The Applicant requests the characterization of service received at the time of discharge be changed to honorable. The Applicant requests a documentary record discharge review. The Applicant listed the Vietnam Veterans of America as his representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20050330. 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. “M_ M_ was discharge from Marine Corps on 05/17/2002. At that time he was suffering from severe depression over the death of a very good friend, Ms K_ L_ U_ L_. Ms L_ and M_ had been friends for four years and were very close. She had to suffer through a long illness and double lung transplant which depressed Mr M_. After returning to his duty assignment from Ms L_’s funeral, Mr M_ then went AWOL. He also received several charges for drinking after this time period. Mr M_ has a year and a half of good service time before the incident of Ms L_’s death and had been awarded a good conduct medal by the Corps for that time period. It is compellingly evident that Mr M_’s bad conduct was a result of this very traumatic death of a good friend and peer. Mr M_ petitions the Marine Corps to reconsider his discharge with this evidence taken into consideration.”
Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant’s DD Form 214
Funeral program
Newspaper article
Special Court Martial Order dtd 001019

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
         Inactive: USMCR(J)                981223 - 981228  COG

 Period of Service Under Review :
Date of Enlistment: 981229               Date of Discharge: 020517

 Length of Service (years, months, days):

         Active: 03 01 16                  [Excludes lost time]
         Inactive: None

 Age at Entry: 20                          Years Contracted: 4

Education Level: 12                        AFQT: 75

 Highest Rank: PFC                          MOS: 7200

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 4.2 (1)                       Conduct: 4.2 (1)

 Military Decorations: None

 Unit/Campaign/Service Awards: RMB

 Days of Unauthorized Absence: 57

 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 :

000531:  Special Court-Martial (trial dates 000531; 000602).
         Charge I: violation of the UCMJ, Article 86: (2 Specifications):
         Specification 1: UA, on or about 991125-000121 (57days/S).
         Specification 2: UA, on or about 000126, failure to go, without authority.
         Additional Charge I: violation of the UCMJ, Article 92: (2 Specifications): Specification 1: On or about 000320, violate a lawful general order, to wit: Combat Center Order P1630.B, by wrongfully operating a motor vehicle while his base driving privileges were revoked.
         Specification 2: On or about 000320, violate a lawful general order, to wit: Combat Center Order 1720.1F, by wrongfully distributing alcohol to Private C___, USMC, a person under the age of 21. Additional Charge II: violation of the UCMJ, Article 111: On or about 000320, physically control a vehicle while impaired by alcohol.
         Findings: To Charge I and specification 1 thereunder, guilty. To Charge I and specification 2 thereunder, guilty, substituting “26” for “25.” To Additional Charge I and specifications 1 and 2 thereunder, guilty. To Additional Charge II and specification thereunder, guilty, except for the language “while impaired by alcohol.”
         Sentence: Confinement for 60 days, reduction to E-1, and a bad conduct discharge.
         CA 001019: Sentence is approved and, except for the bad-conduct discharge, will be executed. All confinement in excess of 45 days will be suspended for a period of 12 months from the date of this action, at which time unless sooner vacated, the suspended portion will be remitted without further action.
        
000602:  To confinement, Sentence of SPCM. [Extracted from DD Form 214]

000708:  From confinement, to duty. [Extracted from DD Form 214]

000724:  To appellate leave.

001019:  To involuntarily appellate leave.

011119:  NMCCCA: Affirmed findings and sentence.

020517:  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 20020517 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 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 and issue submitted, 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 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 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 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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