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USMC | DRB | 2006_Marine | MD0600028
Original file (MD0600028.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. MD06-00028

Applicant’s Request
The application for discharge review was received on 20050923. 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. The Applicant did not designate a representative on the DD Form 293.

 Decision

A documentary discharge review was conducted in Washington, D.C. on 20060824 . 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:

“I need a register action from the court”
Documentation
In addition to the service and medical records, the following additional documentation, submitted by the Applicant, was considered:
Three pages from Applicant’s service record
 Letter to Applicant from T_ M. M_, Archives Technician, National Personnel Records Center, dtd September 12, 2005

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USMCR (DEP)    19950210 - 19950904      COG
          Active: None

 Period of Service Under Review :
Date of Enlistment: 19950905             Date of Discharge: 19990119

 Length of Service (years, months, days):

 Active: 03 04 15 ( d oes not exclude lost time )
          Inactive: None

 Time Lost During This Period (days):
         Unauthorized absence: 71 days
         Confinement:              73 days
Age at Entry: 20

 Years Contracted: 4

 Education Level: 12                                 AFQT: 35

 Highest Rank: PFC                                   MOS: 3381

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 3.6 (6)                                Conduct: 3.3 (7)

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


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 :

950208:  Applicant briefed on and certified understanding of Marine Corps policy concerning illegal use of drugs.
950328:  Pre-service waiver for GT score requirement granted.

960407:  Applicant to unauthorized absence at 0001 on 960407.

 960617:  Applicant from unauthorized absence at 1400 on 960617 .

960715:  NJP for violation of UCMJ, Article 86: Unauthorized absence. On or about 0001, 07 April 1996 fail to report for duty, without authority, and did absent himself from his unit, 2d MAW, to wit: SNM failed to report to the Commanding General, 2dMAW, MCAS, Cherry Point, NC, by 2359, 6 April 1996, for duty. SNM remained absent without authority until 1400, 18 June 1996, when he surrendered himself to the Inspector-Instructor Staff, Detroit, MI.
         Award: Forfeiture of $437 per month for 2 months, restriction for 15 da y s , and extra duty for 30 days, reduction to E-1. Not appealed.

961120:  Counseled for deficiencies in performance and conduct. [(1) Substandard performance, specifically, inability to pass a physical fitness test. (2) Assignment to remedial physical fitness program.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

970321:  Applicant to pretrial restriction for 120 days.

 970407:  Applicant j oined MCB Brig, Camp Lejeune, NC, for confinement.
970520:  Charges preferred for violation of the Uniform Code of Military Justice (UCMJ) Article 86: In that Private First Class V_ T. P_(Applicant), U.S. Marine Corps, on active duty, Headquarters and Headquarters Squadron, Marine Corps Air Station, Cherry Point, North Carolina, did, on or about 0001, 6 April 1997, without authority, absent himself from his place of duty at which he was required to be, to wit: Barracks 4198, room number 328, located on board Marine Corps Air Station, Cherry Point, North Carolina, and did remain so absent until on or about 0700, 6 April 1997.

970521:  Charges referred to special court-martial.

970612:  Memorandum of pretrial agreement.

 970620:  Special Court Martial (trial dates 970605 & 970620):
         Charge I: violation of the UCMJ, Article 86. Plea : Guilty. Finding : Guilty.
 Specification: Did, on or about 0001, 6 April 1997, without authority, absent himself from his place of duty at which he was required to be, to wit: Barracks 4198, room number 328, located on board Marine Corps Air Station, Cherry Point, North Carolina, and did remain so absent until on or about 0700, 6 April 1997. Plea : Guilty. Finding : Guilty, except for the figures “0700” and substituting the figures “0330.” Of the specification as excepted and substituted, Guilty. Of the excepted figures, Not Guilty.
Charge II: Article 112a Plea : Guilty. Finding Guilty.
Specification 1: Did, on board Marine Corps Air Station, Cherry Point, North Carolina, on or about or between 17 February 1997 wrongfully introduce some amount of marijuana onto a installation used by the armed forces or under control of the armed forces, to wit: Marine Corps Air Station, Cherry Point, North Carolina. Plea : Guilty. Finding : Guilty.
Specification 2: Did, at an unknown location, on or about 17 February 1997, wrongfully use marijuana. Plea : Guilty. Finding : Guilty.
Specification 3: Did, on board Marine Corps Air Station, Cherry Point, North Carolina, on or about or between 15 March 1997, wrongfully introduce some amount of marijuana onto a installation used by the armed forces or under control of the armed forces, to wit: Marine Corps Air Station, Cherry Point, North Carolina. Plea : Guilty. Finding : Guilty.
Specification 4: Did, at an unknown location, on or about 15 March 1997, wrongfully use marijuana. Plea : Guilty. Finding : Guilty.
          Sentence: Confinement for 80 days, forfeiture of $600 per month for 3 months, reduction to E-1, Bad Conduct discharge.
         CA 980128: The sentence approved and ordered executed, except for bad conduct discharge.
         
970620:  Applicant from confinement.
970625:  Applicant to appellate leave.

 980922:  NMCCCA: Affirmed findings and sentence.

990106:  Appellate review complete.

 990119:  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 19990119 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 Board was unable to determine the exact meaning of the Applicant’s issue, “I need a register action from the court . ” However, w ith 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, issue and documents 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 P1900.16E), 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 , or Article 112a, wrongful use, possession, etc., of a 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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