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USMC | DRB | 2005_Marine | MD0501271
Original file (MD0501271.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. MD05-01271

Applicant’s Request
The application for discharge review was received on 20050719. The Applicant requests the Discharge Characterization of Service received at the time of discharge be changed to general (under honorable conditions). The Applicant requests a documentary record discharge review and a personal appearance discharge review before a traveling panel closest to Philadelphia, PA . The Applicant did not designate a representative on the DD Form 293. In the acknowledgement letter, the Applicant was informed that the Naval Discharge Review Board (NDRB) does not travel; all hearings are held in the Washington DC area at the Washington Navy Yard. The NDRB also advised that the Board first conducts a documentary review prior to any personal appearance hearing.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20060316. 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:

“My discharge was for AWOL due to my girlfriend being pregnant and having complications. I know this is no excuse and when I was discharged my rank was reduced from E-03 to E-01 and given an O.T.H. but when I requested a copy of my DD 214 it revealed a B.C.D. There is an ERROR. I received my discharge on 08/24/1998 as a other than honorable discharge, but upon reviewing, a more recent sent copy, it is portrayed as Bad Conduct Discharge. I am requesting that the Board assist me in upgrading my discharge based on inequitable evidence, this was an isolated incident in my tenure as a United States Marine. I wish to no longer hold this over my head and wish to be proud of serving. Please help me to better my chances to become a Philadelphia Police Officer. Thank you.”
Documentation
Only the service record book and record of trial were reviewed. The Applicant did not provide additional documentation for the Board’s consideration.

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USMCR (DEP)    19950829 - 19950918      COG
          Active: None
Period of Service Under Review :
Date of Enlistment: 19950919             Date of Discharge: 19990222

 Length of Service (years, months, days):

 Active: 03 05 04 (Does not exclude lost time.)
          Inactive: None

 Time Lost During This Period (days):
         Unauthorized absence: 475 days
         Confinement:              None

 Age at Entry: 18

 Years Contracted: 4

 Education Level: 12                                 AFQT: 58

 Highest Rank: LCpl                                  MOS: 3521

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 4.1                                    Conduct: 4.2*

 Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as stated on the DD Form 214): Rifle Sharpshooter Badge, National Defense Service Medal

*Extracted from SJA recommendation letter dtd 19990107


 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 :

970214:  Applicant to unauthorized absence at 0700 on 970214.

970316:  Applicant declared a deserter on 970316 having been an unauthorized absentee since 0700, 970214 from 1 st Battalion, 10 th Marine Regiment, 2d Marine Division, located at Camp Lejeune, North Carolina.

980603:  Applicant from unauthorized absence at 1510 on 980603 (474 days).

980618:  Charges preferred for violation of the Uniform Code of Military Justice (UCMJ) Article 86: In that Lance Corporal L_ J. M_ Jr., U.S. Marine Corps, Security Battalion, Marine Corps Base, Quantico, Virginia, on active duty, did on or about 14 February 1997, without authority, absent himself from his organization, to wit: 1 st Battalion, 10 th Marine Regiment, 2d Marine Division, located at Camp Lejeune, North Carolina, and did remain so absent until on or about 3 June 1998.

980619:  Charges referred to special court-martial.

980806:  Special Court Martial
         Charge: Violation of the UCMJ, Article 86.
         Specification: Did, on or about 14 February 1997, without authority, absent himself from his organization and did remain so absent until on or about 3 June 1998. Plea: Guilty. Finding: Guilty.
         Sentence: Confinement for 30 days, reduction to E-1, bad conduct discharge.
         CA 990107: The sentence approved and, except for the bad conduct discharge, will be executed, but the execution of that part of the sentence extending to confinement, will be suspended for a period of 12 months from the date of trial, at which time, unless sooner vacated, the suspended part of the sentence will be remitted without further action.
         SA: see SSPCMO.

990222:  SSPCMO: Article 71c, UCMJ, having been complied with, Bad Conduct discharge ordered executed. [Not found in record. Revealed by CORB inquiry to NAMARA.]

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19990222 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).

With respect to a discharge adjudged by a court-martial, 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. 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. Therefore, 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.

Regarding the Applicant’s contention that he was discharged with an under other than honorable conditions character of service, there is no evidence in the record to support the Applicant’s contention. The Applicant pled guilty to and was found guilty of the commission of a serious offense, unauthorized absence from 19970214 until 19980603. The sentence adjudged at court-martial was reduction to E-1, confinement and a bad conduct discharge. The convening order subsequently approved the sentence and the bad conduct discharge was ordered executed on 19990222. 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 P1900.16E), 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 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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