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USMC | DRB | 2006_Marine | MD0600781
Original file (MD0600781.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. MD06-00781

Applicant’s Request
The application for discharge review was received on 20060519 . 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 20070329 . 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
The Applicant is claiming quality of service equity.

 Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant’s DD Form 214 (State Director of Veterans Affair-6)
Applicant’s DD Form 214 (Member 4)
Applicant’s DD Form 214 (Member 1)

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USMCR (DEP)    20011204 - 20020102       COG
          Active: None
Period of Service Under Review :
Date of Enlistment: 20020103              Date of Discharge: 20050510

Length of Service (years, months, days):

 Active: 0 3 0 4 0 7 (Does not exclude lost time.)
         Inactive: None

 Time Lost During This Period (days):
         Unauthorized absence: None
         Confinement:              125 day s

Age at Entry: 18

Years Contracted: 4

Education Level: 12                                 AFQT: 41

Highest Rank: PFC                                    MOS: 3533

Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 3 . 9 ( 8 )                       Conduct: 3 . 7 ( 8 )
Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as stated on the DD Form 214): Rifle Expert Badge (2 nd Awd), National Defense Service Medal, Combat Service Ribbon, Sea Service Deployment Ribbon, Presidential Unit Citation-NAVY, Global War On Terrorism Expeditionary Medal


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 :

011119:  Applicant briefed on and certified understanding of Marine Corps policy concerning illegal use of drugs.
011204 :  CO RS San Francisco waiver authorized.

031211:  Counseling: Advised of deficiencies in performance and conduct (Illegal drug related involvement on 031203, specifically, THC usage identified through urinalysis confirmed by NAVDRUBLAB MSG R 092311Z DEC 03.), necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
0 31223 :  NJP for violation of UCMJ, Article 112a : Did on or about 1200, 031203, tested positive for the use of the controlled substance THC .
         Award: Forfeiture of $ 645. 00 pay per month for 2 month s (1 month suspended) , restriction and extra duty for 3 0 days, reduction to E- 2 . Not appealed.
040331:  NJP for violation of UCMJ, Article 92: Did on or about 1200, 040323, having knowledge of a lawful order issued by Col R_, Commanding Officer, Combat Service Support Group-11 not to mark or write on the exterior of any issued gear, PFC T_ on his own free will wrote a phrase that stated “I would rather be judged by twelve that let down by six” on his helmet.
         Award: Forfeiture of $272.00 pay per month for 1 month. Not appealed.
040422 :  Special Court Martial
          Charge I: violation of the UCMJ, Article 80 .
         Specification: Did, on or about 040228, attempt to wrongfully possess some amount of methamphetamine. Plea : Guilty. Findings : Guilty.
         Charge II: violation of UMCJ, Article 92 .
          Specification: Did, on or about 040228, violate a lawful general order, by wrongfully possessing drug paraphernalia . Plea : Not Guilty. Findings : Withdrawn.
         Charge III : violation of UCMJ, Article 112a (4 specifications) .
         Specification 1: Did, from on or about Feb 03 to on or about Feb 04, on divers occasions, wrongfully use methamphetamine. Plea : Guilty. Findings : Guilty.
         Specification 2: Did, from on or about 1 Feb 04, wrongfully use methamphetamine. Plea : Not Guilty. Findings : Withdrawn.
         Specification 3: Did, from on or about 1 Feb 04, wrongfully introduce some amount of methamphetamine onto an installation used by the armed forces or under control of the armed forces, to wit: March Air Force Base, California. Plea : Guilty. Findings : Guilty.
         Specification 4: Did, from on or about 2 Feb 04, wrongfully possess some amount of methamphetamine. Plea : Not Guilty. Findings : Withdrawn.
         Sentence: Confinement for 5 months, forfeiture of $ 795. 00 pay per month for 6 month s , reduction to E-1, Bad Conduct discharge.
          CA 0 40715 : T he sentence approved and , except for the bad conduct discharge , ordered executed .
         
040423 :  Joined Base Brig, Marine Corps Base Camp Pendleton, California for confinement.
0 40827 :  From confinement, restored to full duty.

041124:  Applicant physically qualified for separation.

0 41208 :  Applicant to appellate leave.
050131 :  NMCCCA: Affirmed findings and sentence.

050411 :  Appellate review complete.
050411 :  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 20050510 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 Applicant is requesting clemency based on his quality of service. 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 is requesting an upgrade to enhance employment opportunities. For the edification of the Applicant, the Board has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities. Regulations limit the Board’s review to a determination of the propriety and equity of the discharge. Relief 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 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 P1900.16F), 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 [e.g., Article 86, unauthorized 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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