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USMC | DRB | 2006_Marine | MD0600420
Original file (MD0600420.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. MD06-00420

Applicant ’s Request
The application for discharge review was received on 20060111 . The Applicant requests the Discharge Characterization of Service received at the time of discharge be changed to honorable . The Applicant requests a personal appearance hearing before the Board in the Washington National Capital Region and 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 20061116 . 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 and/or from an attached document/letter to the Board:
“ Dear Sir or Madam:

 I was awaiting a medical discharge for back trouble and remained with my company. I was on light duty. I was asked by Sgt. H _ to pick up chemicals off base to clean concrete. This was with his money. I picked up hydrochloric acid and was ordered to clean the concrete. We had no respirators, gloves or pyrotechnic wear. My boots melted right off. I began to bleed from the corners of my eyes. I also had a hard time breathing.
I was threatened that “If I told Sick Bay why I had these conditions I did not know just what would happen to me”. While I was waiting to see the doctor I was flipping through my medical records and realized that they had altered my records saying that I was in a 4-day fire fight and suffered from chemical burns and oil inhalation. This is not the truth.

 After that I began to get constant threats from staff Sgt. A _ and Sgt. H _ . The intimidation went as far as a staple being driven into my shoulder.
I packed lightly and left UA after 6 months. I couldn’t take it anymore. I turned myself in. I was special court martialed and received a bad conduct discharge. I was told by legal (military) to fight the case. But I did not know if I was putting my family in risk of danger. I would receive my honorable discharge. I was continuously given small threats that had no real conclusion. I want my Honorable Discharge under Medical Conditions and back pay. I have records and am anxious to settle this matter and I await your prompt reply. I am prepared to receive my Honorable Discharge that I so deserve.

Sincerely,
 [signed]
 R_ P. R_ (Applicant) ”

Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Letter from Applicant , dtd January 3, 2006

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USMCR (DEP)    19900712 - 19900826       COG
         Active: None
Period of Service Under Review :
Date of Enlistment: 19900827              Date of Discharge: 19931129

Length of Service (years, months, days):

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

 Time Lost During This Period (days):
         Unauthorized absence: 1 82 day s
         Confinement:              8 day s

Age at Entry: 1 9

Years Contracted: 3

Education Level: 12                                 AFQT: NA *

Highest Rank: NA*                                    MOS: 1833

Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 3.9 ( 5 )                                 Conduct: 2.7 ( 6 )
Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as stated on the DD Form 214): National Defense Service Medal
*N ot available


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

 BAD CONDUCT DISCHARGE/As a result of a courts-martial (SPCM) - Other, authority: MARCORSEPMAN Par. 1105.

 Chronological Listing of Significant Service Events :

911007:  Applicant to unauthorized absence at 1300.
920331:  Applicant from unauthorized absence at 1443 ( 176 days/surrendered at Naval Training Command, Great Lakes, IL ).
920331:  Applicant to pretrial confinement.
920402:  Applicant released from pretrial confinement and transferred to parent unit under guard.
         [Extracted from Record of Trial.]

920402:  Applicant to pretrial confinement.
          [Extracted from Record of Trial.]

920407:  Applicant released from pretrial confinement.
         [Extracted from Record of Trial.]

 920408 :  Charge preferred against Applicant for violation of the Uniform Code of Military Justice (UCMJ) Article 86 . Specification : In that Private R_ P. R_ ( Applicant ), U.S. Marine Corps, Company D (Rein), 3 rd Assault Amphibian Battalion, Regimental Combat Team Seven, while on active duty, did, on or about 911007, without authority, absent himself from his unit, to wit: Company D (Rein), 3 rd Assault Amphibian Battalion, Regimental Combat Team Seven, located at Marine Corps Air Ground Combat Center, Twentynine Palms, California, and did remain so absent until on or about 920331.

92042 1 :  Applicant submits proposed pretrial agreement.
920422:  Convening Authority and Applicant enter into pretrial agreement.
920422 :  Special Court Martial :
         Charge: V iolation of the UCMJ, Article 86:
         Specification: On 911007, w/o auth, abs himself fr his unit until 920331. Plea: Guilty. Finding: Guilty.
         Sentence: Confinement for 105 day s, forfeiture of $ 5 00 .00 per month for 6 month s , Bad Conduct discharge.
          CA 920626 : S entence approved and ordered executed, except for bad conduct discharge , but execution of that portion of the sentence adjudging confinement for 105 days and forfeiture of $500.00 pay per month for six months is suspended for a period of 12 months.
                 
920423:  Applicant waived right to departmental-level clemency review by N av al Clemency and Parole Board (NC&PB) .

920423:  Applicant signed app ellate rights statement.

920423:  Applicant submits voluntary appellate leave request.

 920424:  Applicant’s voluntary appellate leave request is approved .
930325 :  N avy-Marine Corps Court of Military Review (NMCCMR) a ffirmed findings and sentence.

930422:  NMCCMR decision delivered to Applicant by certified mail.

 930422:  NC&PB clemency not granted; restoration denied.
930630 :  Appellate review considered complete due to Applicant failure to petition Court of Military Appeals for review within 60 days of service of NMCCMR decision .

 931129 :  SSPCMO 203-93 : 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 19931129 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 and issues 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. 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 86, absen t without leave ( 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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