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USMC | DRB | 2006_Marine | MD0600758
Original file (MD0600758.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. MD06-00758

Applicant’s Request
The application for discharge review was received on 20060512 . 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 20070308 . 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 t hat 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
CLEMENCY – One isolated incident in six years of service.
 CLEMENCY – Post-service conduct.

Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant’s DD Form 214
 Letter from Applicant, dtd May 1, 2006
 Excerpts from MARCORPSEPMAN (2 pgs)
Excerpt from Manual for Court-Martial (2 pgs)
 Excerpt from SECNAVINST 5420.174D
Excerpts from Service Record (24 pgs)
Reference ltr from I_ F. T_, dtd February 9, 2006 /Busines s Card
Citizenship Award from Philadelphia Regional High School, dtd June 1998
Orientation Summary from American Military University (3 pgs)
Criminal Record Check , retrieved June 1, 2006 (2 pgs)

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USMCR (DEP)    19970113 - 19971026       COG
          Active: USMC     19971027 - 20030404       HON
Period of Service Under Review :
Date of Enlistment: 20030405              Date of Discharge: 20050810

Length of Service (years, months, days):

 Active: 0 2 0 4 0 6 (Does not exclude lost time)
         Inactive: None

 Time Lost During This Period (days):
         Unauthorized absence: 21 day s
         Confinement:              64 day s

Age at Entry: 24

Years Contracted: 4

Education Level: 12                                 AFQT: 63

Highest Rank: S gt                                    MOS: 7051, 8152, 8551

Final Enlisted Performance Evaluation Averages (number of marks): Fitness reports were available to the Board for review.

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as stated on the DD Form 214): Rifle Expert Badge (3 rd Award), Pistol Expert Badge, Marine Corps Good Conduct Medal (2), National Defense Service Medal, Navy and Marine Corps Achievement Medal (2), Armed Forces Expeditionary Medal (Bahrain), Navy Unit Commendation, Certificate of Commendation (Individual Award)(3), Letter of Appreciation (3), Meritorious Mast


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 :

030405 :  Reenlisted this date for a term of 4 years.
030930:  Confined from 030930 to 031203 (64 days) .
0 31 203 :  Special Court Martial [trial dates 031117 & 031203 ] .
         Charge I: violation of the UCMJ, Article 86 : Unauthorized absence.
         Specification: Did, on or about 030909, without authority, absent himself from his unit and did remain so absent until on or about 030930. Plea: Guilty. Finding: Guil t y.
         Charge II: violation of UMCJ, Article 9 0 : Disobey superior commissioned officer. Specification: Having received a command from Captain D_ C. P_, his superior officer to remove his earring, or words to that effect, did on or about 030930, willfully disobeyed the same. Plea: Guilty. Finding: Guilty.
         Sentence: R eduction to E-1, Bad Conduct discharge.
         CA 050210 : T he sentence is approved and , except for that part of the sentence extending to will be executed.

031222:  Commanding Officer recommended the Applicant’s appellate leave be approved. Commanding Officer’s comments: “[Applicant] was found guilty of Article 86 and Article 90 on 031203. This Marine checked into this unit during Labor Day weekend. After meeting with some members of the command, to include the Sergeant Major, the Marine went UA. On 030930, the Marine returned to the unit. His appearance and actions were not in keeping with good order and discipline. He was disrespectful to a superior commissioned officer and a staff noncommissioned officer. He was uncooperative to the point that PMO had to be called in order to have the Marine perform basic functions. He was placed in a pretrial confinement status. While the chaser attempted to ensure all actions required were fulfilled, the Marine continued to be uncooperative. Actions include, but are not limited to speaking about himself in the third person, insisting he be called “Joe,” insisting his contract was void, refusing to remove his earrings, being disrespectful to his officer and noncommissioned officers, and refusing to sign paperwork necessary to place him in the brig …”

040126:  Applicant to voluntary appellate leave.
         
0 50210 :  Applicant to appellate leave.
050517 :  NMCCCA: Affirmed findings and sentence.

0 50801 :  Appellate review complete.
050805 :  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 20050810 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. The Applicant implies that clemency is warranted because his discharge is the result of “one isolated incident in six years of honorable distinguished service.” In fact, the Applicant violated Articles 86 and 90 of the UCMJ. The Applicant’s violation of Article 90 is the commission of a serious offense. Furthermore, the evidence of record shows that the Applicant requested a bad-conduct discharge at his special court-martial. Therefore, after 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. 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 90 , willfully disobey a superior commissioned officer.

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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