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USMC | DRB | 2006_Marine | MD0600628
Original file (MD0600628.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. MD06-00628

Applicant’s Request
The application for discharge review was received on 20060404 . 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 20070125.
After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, the Board determined that clemency was not warranted and that the characterization of discharge was appropriate. 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
No decisional issues were submitted by the Applicant.
Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:

Applicant’s DD Form 214 (2)
BCNR ltr dtd March 17, 2006
DD149 dtd January 10, 2006

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USMCR (DEP)    19871017 - 19880629       COG
          Active: None
Period of Service Under Review :
Date of Enlistment: 19880630              Date of Discharge: 19950420

Length of Service (years, months, days):

 Active: 0 6 0 9 21 (Does not exclude lost time.)
         Inactive: None

 Time Lost During This Period (days):
         Unauthorized absence: 50 day s
         Confinement:              4 0 day s

Age at Entry: 1 9

Years Contracted: 4

Education Level: GED                                 AFQT: 41

Highest Rank: LCpl                                   MOS: 0311

Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 2.8 ( 7 )                        Conduct: 3.1 ( 7 )

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as stated on the DD Form 214): Rifle Marksmanship Badge


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 :

880722:  CG, MCRD/WRR SDIEGO waiver control # 8809-32249 of 880708 waived the defect in this case and authorized Applicant’s retention in the USMC/USMCR.
890310:  Counseling: Advised of deficiencies in performance and conduct ( unprofessional and immature attitude. Lack of motivation and desire to be a Marine ), necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
890504:  NJP for violation of UCMJ, Article 86: Did, at 0530, 890417 to 0630, 890418, UA (AWOL) from company K, 3dBn, 7thMar.
 Award: Forfeiture of $ 182. 00 pay per month for 1 month (suspended for 6 months) , restriction and extra duty for 14 days. Not appealed.
891213:  Counseling: Advised of deficiencies in performance and conduct (Irresponsibility; writing a check to the MCX without having sufficient funds to cover it), necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
900228:  To confinement.

900409:  From confinement.

 900409 :  Special Court Martial [trial dates 900406 – 900409 ]
         Charge I: violation of the UCMJ, Article 86 , ( 2 specifications).
          Specification 1: On or about 900104, without authority, absent himself from his organization, to wit: 3dBn, 7thMar, 1stMarDiv, 29 Palms, CA and did remain so absent until he was apprehended on or about 900219. Plea: Guilty. Finding: Guilty.
         Specification 2: On or about 900224, without authority, absent himself from his organization, to wit: 3dBn, 7thMar, 1stMarDiv, 29 Palms, CA and did remain so absent until he was apprehended on or about 9002 28 . Plea: Guilty. Finding: Guilty.
        Sentence: Confinement for 60 days , forfeiture of $ 470.00 pay per month for 2 month s , reduction to E-1, Bad Conduct discharge.
          CA 900816 : Only so much of the sentence as provides for a bad conduct discharge, 50 days confinement, forfeiture of $470.00 pay per month for two months and reduction to Private, pay grade E-1 is approved and , except for bad conduct discharge , ordered executed . The accused will be given credit for every day spent in pretrial confinement.
        
90041 3 :  Applicant waived clemency review by Naval Clemency and Parole Board.
900510 :  Applicant to appellate leave.
901121 :  NC&PB clemency not granted; restoration denied.
910213 :  NMCCCA: Affirmed findings and sentence.

910703 :  Appellate review complete.
911031 :  SSPCMO: Article 71c, UCMJ, having been complied with, Bad Conduct discharge ordered executed.
950420:  Applicant discharged.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19950420 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).

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, application and documentation 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. 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, 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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