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USMC | DRB | 2006_Marine | MD0600022
Original file (MD0600022.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. MD06-00022

Applicant’s Request
The application for discharge review was received on 20050928. 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 20060830 . 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:

“Request upgrade of DD Form 214 discharge, “Character of Service””
Applicant’s Remarks: (Taken from the DD Form 293.)

“Request upgrade.”

 Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant’s DD Form 214
Statement from Applicant, undtd

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USMCR (DEP)    20000530 20000531                 COG
         Active: None

 Period of Service Under Review :
Date of Enlistment: 20000601             Date of Discharge: 20030709

 Length of Service (years, months, days):

 Active: 03 01 09 (Does not exclude lost time.)
          Inactive: None

 Time Lost During This Period (days):
         Unauthorized absence: 6 days
         Confinement:              37 days
Age at Entry: 20

 Years Contracted: 4

 Education Level: 11 GED                    AFQT: 63

 Highest Rank: LCpl                                  MOS: 0311

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 4.4 (1)                                Conduct: 4.4 (1)

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


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 :

010924:  Applicant to unauthorized absence on 010924.

010930:  Applicant from unauthorized absence on 010930 (6 days/apprehended).

 011002:  Applicant to pretrial confinement.

011011:  Charges preferred for violation of the Uniform Code of Military Justice (UCMJ) Article 86: Specification: In that Lance Corporal J_ I. C_(Applicant), U.S. Marine Corps, while on active duty, did on or about 24 September 2001, without authority, absent himself from his unit, to wit: 1 st Battalion, 7 th Marines, located at Marine Corps Air Ground Combat Center, Twentynine Palms, California, and did remain so absent until he was apprehended on or about 30 September 2001. Violation of the UCMJ, Article 112a: Specification: In that Lance Corporal J_ I. C_(Applicant), U.S. Marine Corps, while on active duty, did, at or near Fontana, California, on or about 30 September 2001, wrongfully possess marijuana.

011012:  Charges referred to special court-martial.

 011029:  Additional Charge preferred for violation of the Uniform Code of Military Justice (UCMJ) Article 112a: Specification: In that Lance Corporal J_ I. C_(Applicant), U.S. Marine Corps, while on active duty, did, at an unknown location, between about 19 September 2001 through about 01 October 2001, wrongfully use marijuana.
011029:  Additional Charge referred to special court-martial.
011030:  Applicant’s pretrial agreement is approved.

011031:  Special Court Martial
         Charge I: violation of the UCMJ, Article 86:
         Specification: UA fr on or abt 24 Sep 01 until apprehended on or abt 30 Sep 01. Plea: Guilty . Finding: Guilty .
         Charge II: violation of UMCJ, Article 112a:
         Specification: Did, on or abt 30 Sep 01, wrongfully possess marijuana. Plea: Guilty . Finding: Guilty .
         Additional Charge: violation of UCMJ, Article 112a:
         Specification: Did, btwn on or about 19 Sep 01 through on or abt 1 October 01, wrongfully use marijuana. Plea: Guilty . Finding: Guilty .
         Sentence: Confinement for 45 days, forfeiture of $695 per month for 2 months, reduction to E-1, Bad Conduct discharge.
         CA 020607: The sentence approved and ordered executed, except for bad conduct discharge.
         SA: see SSPCMO.

 011031 :  Joined Base Brig, Marine Corps Base, Camp Pendleton, CA, for confinement.
011031:  Applicant requested voluntary appellate leave.

011031:  Applicant requested clemency.

 011108:  Applicant from confinement.

011212:  Applicant request for voluntary appellate leave is authorized.

 021007:  Applicant notified of change of leave status to involuntary appellate leave.

030114:  NMCCCA: Affirmed findings and sentence.

030428:  Appellate review complete.

030627:  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 20030709 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 action of the NDRB is restricted to upgrades based on clemency when a discharge is adjudged by a court-martial case. Clemency is an act of leniency that reduces the severity of the punishment imposed. Relevant and material facts stated in a court-martial specification are presumed by the NDRB to be established facts. After a thorough review of the Applicant’s record and issues submitted, the Board determined that clemency is not warranted. The sentence awarded the Applicant at his court-martial was appropriate for the offenses he committed.

The Applicant is advised that the Veterans Administration determines eligibility for post-service benefits not the Naval Discharge Review Board. There is no requirement or law that grants recharacterization solely on the issue of obtaining Veterans' benefits or enhancing employment and educational opportunities. Regulations limit the Board’s review to a determination on the propriety and equity of the discharge. Since these issues do not serve to provide a foundation upon which the Board can grant relief, relief on this basis is not warranted.

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. The Applicant can provide documentation to support post-service accomplishments or any other evidence related to the discharge at that time. 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 112A Wrongful use, possession, etc. of controlled substance .
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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