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USMC | DRB | 2006_Marine | MD0600250
Original file (MD0600250.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. MD06-00250

Applicant’s Request
The application for discharge review was received on 20051129. The Applicant requests the Discharge Characterization of Service received at the time of discharge be changed to honorable or general (under honorable conditions). The Applicant requests a personal appearance hearing discharge review before the Board in the Washington, D.C. Metropolitan area or a personal appearance hearing discharge review before a traveling panel closest to Illinois or Wisconsin. The Applicant designated Disabled American Veterans as the 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 at the Washington Navy Yard Washington, D.C. area.

Decision

A personal appearance hearing discharge review was conducted in Washington, D.C. on 20060918 . The Applicant was granted an extension until 20060922 to provide documentation to support claims of post service ac hievement s. 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

The Applicant and his Representative submitted the following issue, which supersedes all prior issues submitted to the Board:
“I request my Bad Conduct Discharge be upgraded to a General Discharge due to equitable relief. I have become a responsible and productive person since leaving the military service; to include volunteer work with the VA Hospital, continuous employment; no criminal record; no alcohol or drug abuse, or mental illness, since discharge from military service.”

Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant’s DD Form 214
Certificate of Appreciation for Community Support dtd July 22, 1994
Letter of Appreciation from R. J. M_, Chaplain First Recruit Training Battalion, MCRD, San Diego dtd July 15, 1993
Certificate of Participation for USA Amateur Boxing Fed eration Junior Olympics dtd June 23, 1990

 The following documentation, received by facsimile on September 21, 2006, was considered:

 Character Letter from T_ W. H_, Pastor, Northwest Baptist Church, dtd September 21, 2006

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USMCR (DEP)    19921113 – 19930419               COG
         Active: None

 Period of Service Under Review :
Date of Enlistment: 19930420             Date of Discharge: 19970709

 Length of Service (years, months, days):

 Active: 04 02 20 (Does not exclude lost time.)
          Inactive: None

 Time Lost During This Period (days):
         Unauthorized absence: 103 days
         Confinement:              62 days

 Age at Entry: 18

 Years Contracted: 4

Education Level: 12                                 AFQT: 54

 Highest Rank: LCpl                                  MOS: 2531

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 3.7 (9)                       Conduct: 3.6 (9)

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



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 :

951208:  Applicant to unauthorized absence at 0731 on 951208.

960108:  Declared a deserter.

960110:  Applicant from unauthorized absence at 0730 on 960110 (33 days/surrendered).

960301:  Applicant to unauthorized absence at 0731 on 960301.

960510:  Applicant from unauthorized absence at 1800 on 960510 (70 days/ apprehended) by Milwaukee Police Dept, Milwaukee, WI.

960510:  Pre-trial confinement from 960510 through 960711 (62 days) is credited toward the period of confinement approved.

960711:  Special Court Martial
         Charge I: violation of the UCMJ, Article 86, (2 specifications).
 Specification 1: Absent from unit on 0731, 951208 to 0730, 960110 [33 days/S.]. Plea : Guilty. Finding : Guilty.
Specification 2: Absent from unit on 0731, 960301 to 1800, 960501 [70 days/A.]. Plea : Guilty. Finding : Guilty.
          Sentence: Confinement for 80 days, reduction to E-1, Bad Conduct discharge.
         CA 960711: The sentence approved and ordered executed, except for bad conduct discharge, but the execution of that part of the sentence extending to all confinement in excess of 60 days is suspended for a period of 12 months.
         
960711:  Applicant waived clemency review.

 960801:  Applicant to appellate leave.

970415:  NMCCCA: Affirmed findings and sentence.

970701:  Appellate review complete.
970709:  SSPCMO: Article 71c, UCMJ, having been complied with, Bad Conduct discharge ordered executed.
001214:  NDRB documentary record review Docket Number MD00-00795 conducted. Determination: discharge proper and equitable; relief not warranted.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19970709 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 requests an upgrade in character of discharge to General (Under Honorable Conditions). 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. Relevant and material facts stated in a court-martial specification are presumed by the NDRB to be established facts. In the Applicant case, he was convicted by Special Court-Martial on 19960711 for violation of two specifications of UCMJ, Article 86 (Unauthorized absence). On the first occasion, the Applicant was absent from his unit for 33 days before surrendering. On the second occasion, the Applicant was absent for 70 days before he was apprehended by the Milwaukee Police Department. 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. Relief on this basis is denied.

There is no law or regulation, which provides that an unfavorable discharge may be upgraded, based solely on the passage of time or good conduct in civilian life subsequent to leaving military service. The NDRB is authorized to consider post-service factors in the recharacterization of a discharge to the extent such matters provide a basis for a more thorough understanding of the Applicant’s performance and conduct during the period of service under review. During the personal appearance hearing proceedings the Applicant informed the panel that he had been continuously employed, completed 23 credits hours at Milwaukee Area Community College, had no police involvement, and volunteered at the local VA Hospital. At the time of the hearing , the Applicant did not provide any documentation to support these claims of post-service accomplishments. The Applicant was g ranted an extension until 20060922 to provide documentation for consideration. The Board received and considered only one character reference from the Applicant. After careful consideration, the Board concluded the Applicant’s claims of post-service achievements without documented evidence do not mitigate the misconduct while in the service. Relief denied.
The following is provided for the edification of the Applicant. The Applicant has exhausted opportunities for review at the NDRB. If further review is desired, the Applicant may petition the Board for Correction of Naval Records (BCNR), 2 Navy Annex, Washington, DC 20370-5100, concerning a change in the characterization of service.
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 U nauthorize d 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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