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USMC | DRB | 2006_Marine | MD0600402
Original file (MD0600402.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. MD06-00402

Applicant’s Request
The application for discharge review was received on 20060109 . 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. The Applicant designated Connecticut Department of Veterans Affairs as the representative on the DD Form 293 .

Decision

A documentary discharge review was conducted in Washington, D.C. on 20061108 . 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 an attached document/letter to the Board:
“ I feel I should receive an upgrade of my discharge for the following reasons:

I was accused of a sexual encounter that led to a court martial in 2/28/95 in which I was found not guilty. Unfortunately these incidents created depression, anxiety, panic attacks and hives. During the after effects of this court martial I started to drink alcohol/beer to calm myself from the above problem that I was having. All this did was create more of a problem.

I went to see a psychologist in the Marine Corps concerning my downfall from the pressures of the court martial. If you look at my performance prior to the second court martial it was outstanding. Although my DD214 shows that I was AWOL for 156 days, I was only AWOL for 5 days . My DD214 has many inconsistencies concerning separation dates, etc. Prior to the award I was on two types of anti depressive medications and received therapy once a week for a month. I’m currently being treated at the Veterans Administration Medical Center in West Haven for depression and acute panic disorder which I feel is a part of my military experience.

I have stopped drinking and I am trying to get my life in order. I have a couple of character references to speak on my behalf. I feel an upgrade is justified based upon my statement and prior to my first court martial my military performance records were outstanding. ”

Representative submitted no issues.
Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant’s DD Form 214 (2)
Character Reference from B_ V. G_ Jr., un d a t e d
 Character Reference from J_ R. B_, dtd October 20, 2005
State of Connecticut DVA cover letter, dtd December 6, 2005
 Excerpts from Applicant’s service records (27 pages)


PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USMCR (DEP)    19930423 - 19930427       COG
          Active: None
Period of Service Under Review :
Date of Enlistment: 19930428              Date of Discharge: 19970305

Length of Service (years, months, days):

 Active: 0 3 1 0 0 8 (Does not exclude lost time.)
         Inactive: None

 Time Lost During This Period (days):
         Unauthorized absence: 6 days
         Confinement:              48 days

Age at Entry: 22

Years Contracted: 4
Education Level: 12                                 AFQT: NA*

Highest Rank: LCpl                                   MOS: 3531

Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 4 . 3 ( 5 )              Conduct: 4 . 2 ( 5 )
Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as stated on the DD Form 214): Rifle Expert Badge (2d award), Meritorious Mast, Letter of Appreciation (2d award), Sea Service Deployment Ribbon.



*Not Available


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 :

940627 :  NJP for violation of UCMJ, Article 91: Willfully disobeyed order from Sgt F_ to move to a different barracks.
Violation of UCMJ, Article 134 : Wrongfully left room in an unsat manner at EngSupt co, 3d CEB, 3d MarDiv.
          Award: Forfeiture of $ 226. 00 per month for 1 month, restriction and extra duty for 14 days. Not appealed.
950830:  Applicant to unauthorized absence.

950905:  Applicant from unauthorized ab sence (6 days)

950915:  Applicant to pretrial confinement.
951026:  Charges preferred for violation of the Uniform Code of Military Justice (UCMJ) Article 86 Unauthorized absence (2 specifications) and Article 112a Wrongful use of controlled substance (2 specifications).

951027:  Charges referred to special court-martial.

951102:  Applicant from pretrial confinement ( 48 days).
         
951103 :  Special Court Martial
          Charge I: violation of the UCMJ, Article 86 , ( 2 specifications).
         Specification 1: Did, on board Marine Corps Base, Camp Lejeune, North Carolina, on or about 30 August 1995, without authority, absent himself from his organization, and did remain so absent until on or about 5 September 1995.
         Specification 2: Did, at or about 1800, on or about 14 September 1995, without authority, absent himself from his place of duty at which he was required to be, to wit: Truck Company Motor pool, building #1710, located on board Marine Corps Base, Camp Lejeune, North Carolina, and did remain so absent until at or about 0440, on or about 15 September 1995.
          Charge II: violation of UMCJ, Article 112a, (2 specifications) .
         Specification 1 : Did, at an unknown location, between on or about 24 July 1995 and on or about 3 August 1995, w rongful use cocaine .
         Specification 2: Did, at an unknown location, between on or about 15 August 1995 and on or about 25 August 1995, wrongful use cocaine.
          Findings: to Charge I and specifications 1 and 2 thereunder, guilty.
to Charge II and specifications 1 and 2 thereunder, guilty.
          Sentence: Confinement for 65 days , forfeiture of $ 560.00 per month for 4 months, reduction to E-1, Bad Conduct discharge.
         CA 960517 : In accordance with the terms of the pre-trial agreement, the sentence was approved and , except for bad conduct discharge, was ordered executed, but the execution of that part of the sentence extending to confinement in excess of 57 days is suspended for a period of 6 months from the date the sentence was adjudged, at which time, unless sooner vacated, will be remitted without further action .
          SA: see SPCM S O.

 951121 :  Applicant authorized appellate leave.
961211 :  NMCCCA: Assigned error has some merit and appellant is enti tled to some relief. Accordingly, the findings of guilty and only so much of the sentence as provides for a bad-conduct discharge, reduction to pay grade E-1, forfeiture of $560.00 pay per month for a period of 4 months, and confinement for 57 days are affirmed.
970225 :  Appellate review complete.
970305:  SPCM S O: 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 19970305 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 a n upgrade based on prior good service. 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. The Applicant’s service was marred by a nonjudicial punishment proceedings and one special court-martial conviction for violations of UCMJ Article 86 Unauthorized absence; Article 91 Willfully disobeying; and Article 112a Wronful use of a controlled substance (cocaine). After a thorough review of the Applicant’s records, issues submitted, and character references, 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 informs the Board that he has “stopped drinking” and is “trying to get [his] life in order.” While 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 service, the Board 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. Verifiable proof of any post-service accomplishments must be provided in order for the Applicant to claim post-service conduct and behavior as a reason to upgrade a less than honorable discharge. The Applicant submitted two character references for consideration. The Applicant’s efforts need to be more encompassing to include evidence of continuing educational pursuits, verifiable employment records, documented community service, certification of non-involvement with civil authorities, and credible evidence of a substance free lifestyle. At this time, there is not sufficient documentation of post service character and conduct to mitigate the misconduct that resulted in the characterization of discharge. And so, no relief is granted on this basis.

The Applicant informs the Board that he is currently being treated for “depression and acute panic disorder which [he] feels is a part of my military experience. ” 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 P1900.16E), 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 112a Wrongful use 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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