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USMC | DRB | 2006_Marine | MD0600556
Original file (MD0600556.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. MD06-00556

Applicant’s Request
The application for discharge review was received on 20060310 . 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 did not designate a representative on the DD Form 293.
Decision

A documentary discharge review was conducted in Washington, D.C. on 20070103 . 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 - ISSUES AND DOCUMENTATION

Decisional Issues :

Equity: Isolated incident

Equity: Prior good service
Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant’s DD Form 214
 Excepts from Service Record (5 pgs)

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USMCR (DEP)    19990520 - 19990524       COG
          Active: None
Period of Service Under Review :
Date of Enlistment: 19990525              Date of Discharge: 20041227

Length of Service (years, months, days):

 Active: 0 5 07 0 2 (Does not exclude lost time.)
         Inactive: None

 Time Lost During This Period (days):
         Unauthorized absence: None
         Confinement:              249 day s

Age at Entry: 2 7

Years Contracted: 4

Education Level: 12                                 AFQT: 54

Highest Rank: C pl                                    MOS: 3112 (Traffic Mgmt Specialist)

Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 4 . 7 *                           Conduct: 4 . 3 *

* Extracted from Record of Trial.
Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as stated on the DD Form 214): Rifle Expert Badge (2 nd Awd), Marine Corps Good Conduct Medal, National Defense Service Medal, Meritorious Mast, Letter of Commendation, Certificate of Commendation (Indiv Awd) .


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 :

990518:  Applicant certified understanding of Marine Corps policy concerning illegal use of drugs.
030923:  Pre-Trial agreement: All confinement in excess of TEN (10) months will be suspended for a period of SIX (6) months.

030923 :  Special Court Martial .
         Charge I: violation of the UCMJ, Article 112a ( 4 specifications).
         Specification 1: Did, at on near Virginia Beach, Virginia, on or about 030222, wrongfully distribute approximately 1.68 grams of cocaine . Plea: Guilty. Finding: Guilty.
         Specification 2: Did, at or near Hampton Roads, Virginia area , on divers occasions, between on or about 000101 through on or about 030221 wrongfully distribute some cocaine. Plea: Guilty. Finding: Guilty.
         Specification 3 : Did, at or near Hampton Roads, Virginia area, on divers occasions (approximately weekly), between on or about 000101 through on or about 030201 wrongfully use cocaine. Plea: Guilty. Finding: Guilty.
         Specification 4 : Did, at or near Hampton Roads, Virginia area, on divers occasions (approximately weekly), between on or about 000 1 01 through on or about 030221 wrongfully use “3, 4 methylenedioxymethamphetamine,” (MDMA), commonly known as “ecsta s y,” a Schedule I controlled substance . Plea: Guilty. Finding: Guilty.
Sentence: Confinement for 1 0 months, reduction to E-1, Bad Conduct discharge.
          CA 03 1216 : T he sentence approved and ordered executed, except for bad conduct discharge.
         
040602 :  Applicant f rom co nfinement .

0 40824 :  NMCCCA: Affirmed findings and sentence.

0 41115 :  Appellate review complete.
041203:  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 20041227 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 Board presumed regularity in the conduct of governmental affairs (D).

Equity – Isolated incident and prior good service: The Applicant requests an upgrade, stating that he has “never been in trouble as a Marine prior to [his] conviction” and that he was “an outstanding Marine.”

With respect to a discharge adjudged by a court-martial case, the action of this Board 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 Special Court-Martial conviction for violation of 4 specifications of UCMJ Article 112a Wrongful distribution and use of cocaine and wrongful use of ecstasy. There were no other misconduct documented, and the Applicant’s average proficiency and conduct marks prior to the court-martial were 4.7 and 4.3, respectively. 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 is advised that the NDRB has no jurisdiction over reenlistment, reentry, or reinstatement into any of the Armed Forces. Therefore, this Board does not have the authority to change a reenlistment code. Only the Board for Correction of Naval Records (BCNR) can make changes to reenlistment codes. Regulations limit this Board’s review to a determination of 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 P1900.16F), 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 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.
D. Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part II, Para 211, Regularity of Government Affairs.



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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