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USMC | DRB | 2006_Marine | MD0600348
Original file (MD0600348.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. MD06-00348

Applicant’s Request
The application for discharge review was received on 20051227 . 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 20061102 and 20061108. After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, the NDRB determined that clemency in the characterization of the Applicant’s service was warranted . The Board’s vote was 3 to 2 that the characterization of discharge shall change to: GENERAL (UNDER HONORABLE CONDITIONS) /As a result of a court-martial (SPCM) - Other, authority: MARCORSEPMAN Par. 1105.

 .




PART I - APPLICANT’S ISSUES AND DOCUMENTATION


Issues, as stated

 Applicant’s issues, as stated on the application to the Board:
“ My discharge was inequitable because it was based on one isolated incident in 84 months of service with no other adverse action. I received an Honorable discharge at time of my reenlistment before the Gulf War. I was an dedicated Marine and served my country with pride and loyalty during my tour in the service. Please consider this in your review of my file. ”
Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant’s DD Form 214 (Service 2)
Memorandum from LT D_ G. W_, JAGC, USNR, Individual Military Counsel , dtd July 20, 1994
Ltr from LT D_ G. W_, JAGC, USNR, Individual Militar y Counsel , dtd June 20, 1994
 Records Request Notification from Clay County Sheriff’s Office, Clay County, Florida, dtd December 12, 2005
 Character Reference ltr from W _ N . K_, First Sergeant, Florida Army National Guard , undtd
Character Reference ltr from T_ L_, Vice President F _ I _ Athletic Association, dtd December 11, 2005
Character Reference ltr from Bishop T_ S_, Pastor, S _ T _ of Praise Church , undtd
Twelve pages from Applicant’s Service Record Book

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USMCR (DEP)    19870612 - 19870706       COG
          Active: USMC     19870707 – 199 010 09      HON

Period of Service Under Review :
Date of Enlistment: 19901010              Date of Discharge: 19950626

Length of Service (years, months, days):

 Active: 0 4 08 17 (Does not ex c lude lost time.)
         Inactive: None

 Time Lost During This Period (days):
         Unauthorized absence: None
         Confinement:              50 day s

Age at Entry: 20

Years Contracted: 4

Education Level: 12                                 AFQT: 41

Highest Rank: S gt                                    MOS: 0481/ 8152

Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 4 . 7 ( 18 )                               Conduct: 4 . 7 ( 18 )

Applicant’s fitness reports were available for review.

 Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as stated on the DD Form 214): Rifle Sharpshooter Badge, National Defense Service Medal, Good Conduct Medal w/1 star, Kuwait Liberation Medal, Navy Unit Commendation, Southwest Asia Service Medal w/ 3 stars, Meritorious Unit Commendation, Letter of Appreciation (3 awards), Sea Service Deployment Ribbon w/1 star, Meritorious Mast


Character, Narrative Reason, and Authority of Discharge (at time of issuance):

 BAD CONDUCT DISCHARGE/As a result of a court-martial (SPCM) - Other, authority: MARCORSEPMAN Par. 1105.
Chronological Listing of Significant Service Events :

901010 :  Reenlisted this date for a term of 4 years.

940126:  Charge preferred against Applicant for violation of the Uniform Code of Military Justice (UCMJ) , Article 90: Willfully d isobeying lawful order of superior commissioned officer .
940126:  Charge referred to a special court-martial.

940315:  Addition al charge preferred against Applicant for violation of the Uniform Code of Military Justice (UCMJ), Article 86: Absence without leave.

940315:  Additional charge referred to previously convened special court-martial.
940411:  Special Court Martial
          Charge I: V iolation of the UCMJ, Article 90:
          Specification: In that Sergeant E_ C_, (Applicant) U. S. Marine Corps, Marine Corps Security Force Company, Naval Submarine Base, Kings Bay, Georgia, on active duty, having received a lawful command from Major W_ G. T_, U. S. Marine Corps, his superior commissioned officer, then known by the said Sergeant C_ to be his superior commissioned officer, to conduct an inventory of the Auxiliary Resale Outlet located at the Marine Corps Security Force Company, Naval Submarine Base, King Bay, Georgia, or words to that effect, did, at Marine Corps Security Force Company, Naval Submarine Base, Kings Bay, Georgia, on or about 940113 willfully disobey the same. Plea : Guilty   Findings : Guilty
          Additional Charge: V iolation of UMCJ, Article 86:
          Specification: Unauthorized absence on 940225 until 940228 from MCSFCo., NSB, Kings Bay, GA. Plea : Not Guilty    Findings : Not Guilty
         Sentence: Confinement for 2 months, reduction to E-1, Bad Conduct D ischarge.
          C onvening Authority action on 940629: S entence approved and , except for the part of the sentence extending to a Bad Conduct discharge, ordered executed.
                  
940411:  Applicant to confinement.
940531:  Applicant f rom co nfinement .
Not dated:       Applicant to appellate leave.
         [Date not indicated in service record.]
950217:  N avy-Marine Corps Court of Criminal Appeals (NMCCA) affirms findings and sentence.

950228:  Applicant served via certified mail with (NMCCA) decision.

950509:  Appellate review complete (no petition for review of NMCCA decision received within time limit) .

 950626 :  SSPCMO: Article 71c, UCMJ, having been complied with, Bad Conduct discharge ordered executed.
950626:  DD Form 214: Applicant discharged with character of service of bad-conduct as a result of a court-martial. Applicant did not sign DD Form 214.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19950626 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 sufficient to merit clemency (C).

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. 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. After a thorough review of the Applicant’s record, issues submitted, and post service accomplishments, the Board determined that clemency was warranted and that the discharge awarded the Applicant at his court-martial was not appropriate for the offense he committed. The Applicant’s overall in-service record indicated that the Applicant’s misconduct was isolated and not in keeping with his otherwise commendable performance and behavior. Further, the Applicant’s positive post-service accomplishments are consistent with and support the conclusion that the Applicant’s single incident of misconduct was an aberration from his normal respect and regard for legal authorities and the appreciation of his own legal and moral duties and responsibilities toward them. Weighing all relevant factors convinced the Board that the Applicant’s overall service warranted an upgrade to a more accurate characterization of his service. The Applicant’s misconduct constituted a negative aspect of performance which, given its willful nature, outweighed the positive aspects of his performance; hence, a general (under honorable conditions) characterization of service was deemed appropriate. However, the Board determined that Applicant did not warrant an upgrade to honorable, as he requested. Relief is partially granted.

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 any claims of post-service accomplishments or any additional evidence related to this 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 COURTS-MARTIAL , of the Marine Corps Separation and Retirement Manual, (MCO P1900.16D), effective 27 Jun 89 until 17 Aug 95.

 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 90, Willfully disobeying lawful order of superior commissioned officer.

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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