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USMC | DRB | 2006_Marine | MD0600433
Original file (MD0600433.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. MD06-00433

Applicant ’s Request
The application for discharge review was received on 20060130 . 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 20061206 . 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.






The NDRB did note administrative error(s) on the original DD Form 214. Block 5 , Date of Birth, should read: “ 760421 , ” and Block 28, Narrative Reason for Separation, should read: “COURT-MARTIAL,” and Block 29, Dates of Time Lost During This Period, should read: “TL: 19951227 – 19960107 (11); 19970106 – 19970115 (9); 19970705 – 19980309 (247); 19980310 – 19980414 (36).” The Commandant, Headquarters USMC, Quantico, VA, will be notified, recommending the DD Form 214 be corrected or reissued, as appropriate.


PART I -

APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

 Applicant ’s issues, as stated on the application:
“ My discharge was inequitable because it was based on one isolated incident in 28 months of service with no other adverse action. ”
Applicant’s Remarks: (Taken from the DD Form 293.)
“ Birthdate is incorrectly typed on item #5. correct birthdate is 760421. ”
Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant ’s DD Form 214 (Member 1 (2) , State Director of Veterans Affairs - 6)
Applicant ’s DD Form 214 ( 3 )
 Applicant ’s partial DD Form 214
 Applicant ’s promotion to Lance Corporal Certificate , dtd August 1, 1996 (2)
 Applicant ’s promotion certificate, ( unreadable )
Applicant ’s United States Marine Corps, Motor Transport School, diploma, dtd     December 1, 1995
 Applicant ’s California Specialized Training Institute, certificate of completion of      Hazardous Materials Course, First Responder Operational, dtd November 14, 1996
 Applicant ’s California Specialized Training Institute, certificate of completion of      Hazardous Materials Course, First Responder Operational Decom, dtd November 15,          1996
 Twelve pages from Applicant ’s service record
 Applicant ’s United States Marine Corps certificate of completion of Fundamentals of      Marine Corps Leadership, dtd December 6, 1996 (2)
 Applicant ’s letter of appreciation, dtd July 31, 1996
 Applicant ’s United States Marine Corps Meritorious Mast, dtd October 1, 1996
 Applicant ’s United States Marine Corps, School of Infantry certificate of completion of          Marine Combat Training, dtd May 26, 1995

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USMCR (DEP)    19940824 - 19950117       COG
         Active: None
Period of Service Under Review :
Date of Enlistment: 19950118              Date of Discharge: 19990222

Length of Service (years, months, days):

 Active: 0 4 0 1 0 5 (Does not exclude lost time.)
         Inactive: None

 Time Lost During This Period (days):
         Unauthorized absence : 2 67 day s   
         Confinement:              36 days

Age at Entry: 18
Years Contracted: 4
Education Level: 12                                 AFQT: 32

Highest Rank: LCpl                                   MOS: 3521

Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 3.9 (8 )                                Conduct: 3.8 ( 8 )
Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as stated on the DD Form 214): National Defense Service Medal, Rifle Sharpshooter Badge


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 :

940824 :  Pre-service waiver granted.
951227:  Applicant to unauthorized absence at 1200 on 951227.

 951228:  Applicant to unauthorized absence on 951228 . [Extracted from NAVMAC 118.]

960107:  Applicant from unauthorized absence at 1845 on 960107 ( 11 days).
960111:  NJP for violation of UCMJ, Article 86: In that PFC C_ H_( Applicant ), did, on or about, 1200 951227, without authority, absent himself from his unit of duty at which he was required to be, to wit: HQ Btry, located at 41 Area, Las Flores, Camp Pendleton, MCB, and did remain so absent until on or about 1845 960107.
         Award: Forfeiture of $ 874.00 per month for 2 month s , restriction and extra duty for 45 days, reduction to E- 1 . Reduction to E-1 and f orfeiture of ½ mo pay for a per of 1 mo susp for a per of 6 mos. Not appealed.
960226:  Acknowledged understanding of eligibility but not recommended for promotion to LCpl for the month of March because of recent NJP, viol Art 86 . Applicant chose not to make a statement.
960510:  Acknowledged understanding of eligibility but not recommended for promotion to LCpl for the month of April because of your recent NJP. Applicant chose not to make a statement.
970106:  Applicant to unauthorized absence at 0715 on 970106 .
970115:  Applicant from unauthorized absence at 0715 on 970115 ( 9 days).






970220:  NJP for violation of UCMJ, Article 86: In that LCpl H_( Applicant ), did, on board MCB Camp P Pendleton, CA on or about 0715, 970106, without authority, absent himself from his place of duty, to wit: Bldg 41303, HQ Btry formation and did so remain absent until on or about 0715 970115.
Violation of UCMJ, Article 92 : In that LCpl H_, having knowledge of a lawful order issued by 1stSgt T_ to report leave extension request to the Btry CO or the Bn OOD, an order which it was his duty to obey, did not while on authorized st atus on or about 961227 to 970107.
Violation of UCMJ, Article 87: In that LCpl H_, did, on board MCB Camp Pendleton, CA on or about 0430 970110 through neglect miss the movement of HQ Btry to MCB 29 Palms, CA with which he was required in the course of duty to move.
         Award: Forfeiture of $ 505.00 per month for 2 month s , restriction for 45 days and extra duty for 3 0 days, reduction to E- 2 . Not appealed.
970224:  Acknowledged understanding of eligibility but not recommended for promotion to Cpl for the month of March 1997 for the lack of judgment . Applicant chose not to make a statement.
970703:  Applicant to unauthorized absence on 970703 . [Extracted from NAVMAC 118.]

970705:  Applicant to unauthorized absence at 0801 on 970705 .
970801:  Acknowledged understanding of eligibility but not recommended for promotion to LCpl for the month of Aug-97 for the lack of judgment.

970804:  Applicant declared a deserter.

 980306:  Applicant in hands of civilian authorities at 0930, 980306 .
980306:  Applicant from unauthorized absence at 1440 on 980306 ( 244 days/apprehended).

980309:  Applicant from unauthorized absence on 980309 (247 days). [Extracted from NAVMAC 118.]

980310:  Applicant delivered to 1 st Marine Division at 1600, 980310 from civilian authorities (4 days) .
980310:  Applicant found fit for confinement. Applicant to confinement at Camp Pendleton Base Brig.


980324:  Charges preferred for violation of the Uniform Code of Military Justice (UCMJ) Article 86: Specification: In that Private First Class C_ M. H_( Applicant ), U.S. Marine Corps, on active duty, did, on or about 970706 without authority, absent himself from his unit, to wit: Headquarters Battery, 5 th Battalion, 11 th Marines, 1 st Marine Division(Rein), located at Camp Pendleton, CA, and did remain so absent until he was apprehended on or about 980306.

980402:  Applicant informed of charges.

980402:  Charges referred to special court-martial.

 980414:  Applicant ’s pretrial agreement.

 980415:  Applicant from confinement (36 days) .
980415:  Special Court Martial
         Charge: violation of the UCMJ, Article 86:
          Specification: In that Private First Class C_ M. H_(Applicant), U.S. Marine Corps, on active duty, did, on or about 970706 without authority, absent himself from his unit, to wit: Headquarters Battery, 5 th Battalion, 11 th Marines, 1 st Marine Division(Rein), located at Camp Pendleton, CA, and did remain so absent until he was apprehended on or about 980306. . Plea: Guilty. Finding: Guilty.
         Sentence: Confinement for 35 days , reduction to E-1, Bad Conduct discharge.
         CA 980709 : T he sentence approved and ordered executed, except for bad conduct discharge.
          SA: see SSPCMO.
         
980415:  Applicant signed appellate rights statement.

 980512:  Applicant to appellate leave. [Extracted from NAVMAC 118.]

980618:  SJA Memorandum to Commanding Officer, 3d Assault Amphibian Battalion, 1 st Marine Division (Rein). Recommends that CO approve the sentence as adjudged.

981030 :  NMCCCA: Affirmed findings and sentence.

99021 9 :  Appellate review complete.
990222 :  SSPCMO: 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 19990222 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

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 P1900.16E), 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, unauthorize 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 Instruction 1332.28, you may submit a complaint in accordance with Enclosure (5) of that Instruction . You should read Enclosure (5) of the Instruction 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 Instruction 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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