Search Decisions

Decision Text

USMC | DRB | 2006_Marine | MD0600356
Original file (MD0600356.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. MD06-00356

Applicant’s Request
The application for discharge review was received on 20060104. 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 designated Senator Campbell as a representative on the DD Form 293. On 20040513, the Naval Council of Personnel Boards received a letter from Senator Campbell, stating that he was not to be considered the Applicant’s counsel or representative. In the acknowledgement letter, dated 20060104, the Applicant was informed that Members of Congress or their employees do not normally represent applicants before the Board, unless the Applicant obtains written authorization from the Member of Congress to do so.
Decision

A documentary discharge review was conducted in Washington, D.C. on 20060209. 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 wish to re-enter the service Army preferably the U.S. Marine Corps. I had 3-½ year good conduct medal, over seas service, Navy Unit accommodation. I achieved the rank of CPL. Due to a bad decision on my part & coming home for family reasons. With all the turmoil our country is in I wish to serve my country again. I made a mistake; I have enlisted the help of senator B_ N_ C_. Please Sir or Mama I just wish the chance to serve my country again and regain my honor.

Sincerely
[signed] C_ B_”

Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
U.S. Navy Marine Corps Court of Criminal Appeals Decision dtd June 23, 2003 (partial page) (2 copies)
Administrative Boards Information (2 copies)
Letter from K_ K_, LT, JAGC, USNR, Appellate Defense Counsel dtd October 2, 2003
         (2 copies)
Letter from B_ N_ C_, U.S. Senator dtd May 5, 2004 (2 copies)
Letter from Applicant dtd May 2, 2004 (2 copies)

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USMCR (DEP)    19970517 – 19971019               COG
         Active: None

 Period of Service Under Review :
Date of Enlistment: 19971020             Date of Discharge: 20031104

 Length of Service (years, months, days):

 Active: 06 00 15 (Does not exclude lost time.)
          Inactive: None

 Time Lost During This Period (days):
         Unauthorized absence: 158 days
         Confinement:              61 days

 Age at Entry: 25

 Years Contracted: 4

Education Level: 12                                 AFQT: 56

 Highest Rank: Cpl                                   MOS: 3533

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 4.4*                 Conduct: 4.0*

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

* Extracted from Staff Judge Advocate’s ltr dtd June 19, 2002


 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 :

990315:  Counseled for deficiencies in performance and conduct. [Failure to obey an order regulation, specifically, by not utilizing a ground-guide while backing a bus resulting in hitting a POV.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

010829:  Applicant to UA.

010829:  Applicant declared a deserter.

020206:  Applicant in the hands of civilian authorities (Apprehended).

020207:  Applicant returned to military control.

020208:  Applicant joined Marine Corps Base Brig, Camp Lejeune, North Carolina, for pre-trial confinement.

020306:  Special Court Martial [trial date 020306]
         Charge I: violation of the UCMJ, Article 86. Plea: Guilty. Finding: Guilty.
          Specification: Did on or about 29 August 2001, without authority, absent himself from his unit, and did remain so absent until he was apprehended on or about 6 February 2002. Plea: Guilty. Finding: Guilty.
          Charge II: violation of UMCJ, Article 112a. Plea: Guilty. Finding: Guilty
         Specification: Did, at an unknown location, between on or about 15 April 2001 and on or about 30 April 2001, wrongfully use marijuana. Plea: Guilty. Finding: Guilty.
          Sentence: Confinement for 75 days, forfeiture of $500 per month for 2 months, reduction to E-1, Bad Conduct discharge.
          CA 020709: The sentence approved and ordered executed, except for bad conduct discharge.
        
020409:  From confinement, restored to full duty.

020411:  Authorized voluntary appellate leave.

020718:  Notified of assignment to involuntary appellate leave.

030623:  NMCCCA: Affirmed findings and sentence.

030923:  Appellate review complete.

031022:  SSPCMO: Article 71c, UCMJ, having been complied with, Bad Conduct discharge ordered executed.

         Service Record was missing elements of the Summary of Service.

        

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20031104 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).

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 not warranted and that the sentence awarded the Applicant at his court-martial was appropriate for the offenses he committed. Relief denied.

Since the NDRB has no jurisdiction over reenlistment, reentry, or reinstatement into the Navy, Marine Corps, or any other of the Armed Forces, NDRB is not authorized to change a reenlistment code. An unfavorable “RE” code is, in itself, not a bar to reenlistment. A request for a waiver can be submitted during the processing of a formal application for reenlistment through a recruiter. Only the Board for Correction of Naval Records (BCNR) can make changes to reenlistment codes.

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 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 86, unauthorized absence for more than 30 days, and Article 112a, wrongful use 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

Similar Decisions

  • USMC | DRB | 2005_Marine | MD0501193

    Original file (MD0501193.rtf) Auto-classification: Denied

    PART I - APPLICANT’S ISSUES AND DOCUMENTATION The way the record reads it gives the appearance that the Non-Commissioned Officer (NCO) that brought forth the allegations and specifications may have been experiencing and personality conflict with the applicant and instead of more direct counseling to resolve the issues took another approach to bring forward any charge that could be thought of to mitigate a discharge for the applicant, thereby not having to deal with the events of the past...

  • NAVY | DRB | 2005_Navy | ND0501362

    Original file (ND0501362.rtf) Auto-classification: Denied

    I am asking again to please up-grade my discharge. Date of offense: 991012.000118: Applicant to pretrial confinement.000204: Charges preferred for Charge I: Violation of the UCMJ, Article 81:Specification: In that Seaman Apprentice L_ NMN B_(Applicant), U.S. Navy, Naval Station Bremerton, Bremerton, Washington, on active duty, did, at or near Naval Station Bremerton, Bremerton, Washington, on or about 6 January 2000, conspire with a unnamed person to commit an offense under the Uniform Code...

  • NAVY | DRB | 2006_Navy | ND0600165

    Original file (ND0600165.rtf) Auto-classification: Denied

    ND06-00165 Applicant’s Request The application for discharge review was received on 20051103. After returning from treatment, the member states she did not gamble at all for nearly 9 months, and then in July 01, she began to gamble excessively again. 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.

  • USMC | DRB | 2002_Marine | MD02-00976

    Original file (MD02-00976.rtf) Auto-classification: Denied

    PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW Discussion The Applicant was discharged on 000403 with a bad conduct discharge which was the sentence adjudged by a properly constituted special court martial that was determined to be legal and proper, affirmed by appellate review authority and executed (A and B). Outstanding post-service conduct, to the extent that such matters provide a basis for a more thorough understanding of the Applicant's performance and conduct during...

  • USMC | DRB | 2006_Marine | MD0600422

    Original file (MD0600422.rtf) Auto-classification: Denied

    MD06-00422 Applicant’s Request The application for discharge review was received on 20060118. The discharge shall remain as a bad conduct discharge by reason of court-marital. Specification 1: Having knowledge of a lawful order issued by the Commanding Officer of the Marine Corps Communication-Electronics School, to wit: School Order 5370.4A, dated 950410, an order which it was his duty to obey, did on board Marine Corps Air Ground Combat Center, Twentynine Palms, California, on or about 9...

  • USMC | DRB | 2005_Marine | MD0501428

    Original file (MD0501428.rtf) Auto-classification: Denied

    MD05-01428 Applicant’s Request The application for discharge review was received on 20050824. After a thorough review of the Applicant’s record, issues submitted, and post service accomplishments, 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. The Applicant provided two letters of recommendation, a community college diploma and a certificate of training as documentation of...

  • USMC | DRB | 2005_Marine | MD0501419

    Original file (MD0501419.rtf) Auto-classification: Denied

    MD05-01419 Applicant’s Request The application for discharge review was received on 20050825. 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 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 of a controlled...

  • USMC | DRB | 2002_Marine | MD02-01342

    Original file (MD02-01342.rtf) Auto-classification: Denied

    PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW Discussion The Applicant was discharged on 19980629 with a bad conduct discharge which was the sentence adjudged by a properly constituted special court-martial that was determined to be legal and proper, affirmed by appellate review authority and executed (A and B). Relief not warranted.The Applicant is reminded that he remains eligible for a personal appearance hearing, provided an application is received at the NDRB within 15...

  • NAVY | DRB | 2006_Navy | ND0600783

    Original file (ND0600783.rtf) Auto-classification: Denied

    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 (use of a controlled substance) and 83 (fraudulent enlistment).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 . D....

  • USMC | DRB | 2006_Marine | MD0600352

    Original file (MD0600352.rtf) Auto-classification: Denied

    Findings : Guilty Charge III: Violation of Article 91: Specification: On or about 000228, was disrespectful toward Sergeant J_ H_, U.S. Marine Corps. Findings : Guilty Charge IV: Violation of Article 112a: Specification: Did, between 000123 and 000224, wrongfully use marijuana. Findings : Guilty Sentence: Confinement for 90 days, forfeiture of $630.00 per month for 3 months, Bad Conduct discharge.