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USMC | DRB | 2005_Marine | MD0500178
Original file (MD0500178.rtf) Auto-classification: Denied


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

ex-Pvt, USMC
Docket No. MD05-00178

Applicant’s Request
The application for discharge review was received on 20041103. The Applicant requests the characterization of service received at the time of discharge be changed to general/under honorable conditions. The Applicant requests a documentary record 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 20050214. 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

 No issues were submitted by the Applicant.
Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant’s DD Form 214

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
         Inactive: USMCR(J)                940329 - 940508  COG

 Period of Service Under Review :
Date of Enlistment: 940509               Date of Discharge: 981008

 Length of Service (years, months, days):

         Active: 04 05 00 (Does not exclude lost time)
         Inactive: None

 Age at Entry: 20                          Years Contracted: 4

Education Level: 12                        AFQT: 36

 Highest Rank: PFC                          MOS: 2531

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 4.3 (8)                       Conduct: 3.8 (8)

 Military Decorations: None

 Unit/Campaign/Service Awards: NDSM, LA (2), SSDR, RSB, PMB

 Days of Unauthorized Absence: 31

 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 :

960628:  Counseled for deficiencies in performance and conduct. [False statement to a SNCO and failing a PFT.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
960709:  NJP for violation of UCMJ, Article 86: UA from 0730, 960618 to 1040, 960620.
         Award: Forfeiture of $250.00 (suspended for 6 months), restriction and extra duty for 14 days. Not appealed.
961030:  To pre-trial confinement.

961213:  From confinement, to duty

 961218:  Summary Court-Martial.
         Charge I: Violation of the UCMJ, Article 86 (3 specs).
         Specification 1: UA from place of duty on 960909.
         Specification 2: UA from place of duty on 960921.
         Specification 3: UA from 961008 to 961030.
         Charge II: Violation of the UCMJ, Article 92 (2 specs).
         Specification 1: Operate a motor vehicle with a suspended driver’s license.
         Specification 2: Wearing utilities in an unauthorized area.
         Finding: To Charge I and II and the specifications thereunder, guilty.
         Sentence: Forfeiture of $580.00, confinement for 30 days, reduction to Pvt.
         CA action (Undated): Sentence approved and ordered executed except for that portion of the punishment adjudging forfeiture of $580.00 which is suspended for 6 months.

961224:  Counseled for deficiencies in performance and conduct. [UA on numerous occasions and unauthorized wearing of utilities on several occasions. Lying to the CO.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

961227:  To UA.

961230:  From UA, to duty.

970128:  To pre-trial confinement.

970501:  From confinement, to duty.
        
970501:  Special Court-Martial.
         Charge I: Violation of the UCMJ, Article 128.
         Specification: On 970126 unlawfully strike LCpl G_, by choking her, grabbing her by the throat, and pushing her head into a wall.
         Findings: To Charge I and specification thereunder, guilty.
Sentence: Forfeiture of $250.00 for four months, confinement for 60 days, and a bad conduct discharge.
          CA 971216: Sentence approved and ordered executed except for the BCD and forfeiture.
        
970928:  To UA.

971002:          From UA, to duty.

980708:  NMCCMR: Affirmed findings and sentence.

980924:  COMA: Petition for review denied.

981008:  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 19981008 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).

The Applicant introduced no decisional issues for consideration by the Board. The Applicant was found guilty at court-martial of assaulting his wife. He also had a previous court-martial conviction and one NJP for unauthorized absence and disobedience of orders. 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’s case was considered under the pertinent standards of equity to determine if any factors in this particular case merited clemency. After a thorough review of the Applicant’s record, 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 is reminded that he remains eligible for a personal appearance hearing, provided an application is received at the NDRB within 15 years from the date of his 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 P1900.16E), effective 950818 until 010831.

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; Article 92, disobey a lawful order; and Article 128, assault.
C. Secretary of the Navy Instruction 5420.174D of 22December 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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