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USMC | DRB | 2005_Marine | MD0501188
Original file (MD0501188.rtf) Auto-classification: Denied


DEPARTMENT OF THE NAVY
NAVAL DISCHARGE REVIEW BOARD (NDRB)
 DISCHARGE REVIEW
DECISIONAL DOCUMENT
FOR OFFICIAL USE ONLY

ex-PVT, USMC
Docket No. MD05-01188

Applicant’s Request
The application for discharge review was received on 20050606. The Applicant requests the Discharge Characterization of Service received at the time of discharge be changed to honorable. The Applicant requests a documentary record discharge review. The Applicant did not designate a representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20060131. 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 as a bad conduct discharge by reason of court-marital.


PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

“If it wasn’t for the hazing I would not have went UA. I never committed a crime.”
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):
         Inactive: USMCR (DEP)    19990326 – 19990727               COG
         Active: None

 Period of Service Under Review :
Date of Enlistment: 19990728             Date of Discharge: 20030929

 Length of Service (years, months, days):

 Active: 03 06 05 (Excludes lost time)
          Inactive: None

 Time Lost During This Period (days):
         Unauthorized absence: 202 days
         Confinement:              35 days

 Age at Entry: 19

 Years Contracted: 4

Education Level: 12                                 AFQT: 38

 Highest Rank: LCpl                                  MOS: 0311

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: NA*                           Conduct: NA*

 Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as stated on the DD Form 214): Rifle Expert Badge, Sea Service Deployment Ribbon.

*Not Available


 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 :

010329:  Acknowledged understanding of eligibility but not recommended for promotion to Cpl for the month of May because of lack of leadership. Applicant chose not to make a statement.

010501:  Acknowledged understanding of eligibility but not recommended for promotion to Cpl for the month of June because of lack of maturity. Applicant chose not to make a statement.

010531:  Acknowledged understanding of eligibility but not recommended for promotion to Cpl for the month of July because of lack of maturity. Applicant chose not to make a statement.

010703:  Acknowledged understanding of eligibility but not recommended for promotion to Cpl for the month of August because of lack of knowledge. Applicant chose not to make a statement

010810:  Acknowledged understanding of eligibility but not recommended for promotion to Cpl for the month of Sept because of lack of maturity. Applicant chose not to make a statement.

 010814:  To unauthorized absence at 0700 on 010814.
010913:  Applicant declared a deserter on 010913 having been an unauthorized absentee since 0700, 010814 from 2ND BN, 7TH MAR, 1ST MARDIV, 29 PALMS CA.

020304:  Applicant apprehended by civil authorities on 020304 (1230) at Kern County Jail Bakersfield, CA. Returned to military control 020304. Retained.

020305:  Joined Base Brig, Marine Corps Base, Camp Pendleton, California, for confinement.

020403:  Special Court Martial
         Charge I: Violation of the UCMJ, Article 86.
         Specification: Unauthorized absence 010814 - 020303.
         Plea: Guilty. Finding Guilty*
 *Guilty; except for the words, “Camp Pendleton” substituting therefore the words and figures, “Twentynine Palms”; of the excepted language: Not guilty of the Specification as substituted and excepted: Guilty.
          Sentence: Confinement for 60 days, reduction to E-1, Bad Conduct discharge.
         CA 020919: The sentence approved and excepted for a bad conduct discharge, ordered executed, but execution of that portion of the sentence adjudging all confinement in excess of 45 days is suspended for a period of 12 months from the date of this action, at which time unless sooner vacated, the suspended portion of the sentence will be remitted without further action.
        
020409:  From confinement, restored to full duty.

020410:  Applicant to voluntary appellate leave.

020920:  Applicant to involuntary appellate leave.

030618:  NMCCCA: Affirmed findings and sentence.

030908:  Appellate review complete.

030912:  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 20030929 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). After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, the Board found that the Applicant’s issues were insufficient to merit clemency (C).

The Applicant contends, “I never committed a crime.” In response to the Applicant’s issue, relevant and material facts stated in a court-martial specification are presumed by the NDRB to be established facts. The Applicant was convicted of and pleaded guilty to unauthorized absence from 20010814-20020303. 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. Though the Applicant claimed to be a victim of “hazing,” 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. 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 offense 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, Para 205(2), Jurisdictional Limitations Authority for Review of Discharges.

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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