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USMC | DRB | 2006_Marine | MD0600857
Original file (MD0600857.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. MD06-00857

Applicant ’s Request
The application for discharge review was received on 20060608 . 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 docu mentary 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 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 2 9 , Dates of Time Lost During This Period , should read: “ (12) 20010518-20010529, (1 59 ) 20010614-20011 20 , (5 9 ) 2001112 0 -20020117.” The Commandant, Headquarters USMC, Quantico, VA, will be notified, recommending the DD Form 214 be corrected or reissued, as appropriate.

PART I - ISSUES AND DOCUMENTATION

Decisional Issues
Equity: Post-service conduct warrants clemency

 Documentation
In addition to the service and medical records, the following additional documentation, submitted by the Applicant, was considered:
Applicant ’s DD Form 214 (Service 2)

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USMCR (DEP)    20000731 - 20000820       COG
         Active: None
Period of Service Under Review :
Date of Enlistment: 20000821              Date of Discharge: 20030206

Length of Service (years, months, days):

 Active: 0 2 0 5 16 (Does not exclude lost time.)
         Inactive: None

 Time Lost During This Period (days):
         Unauthorized absence: 17 1 day s
         Confinement:              5 9 day s

Age at Entry: 1 7 (Parental Consent)

Years Contracted: 5

Education Level: 12                                 AFQT: 7 0

 Highest Rank: PFC                                    MOS: 6311

Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 4 . 1 (*)                                  Conduct: 2.7 (*)

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

*Number of marks not available in record


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 :

010518:  Applicant to unauthorized absence at 0616.

 0105 30 :  Applicant from unauthorized absence at 1430 ( 1 2 days/surrendered).
01061 4 :  Applicant to unauthorized absence at 0631 .
011011:  Applicant in hands of civilian authorities for civilian offense.

 011120:  Applicant in hands of civilian authorities, available to military authorities. Applicant from unauthorized absence ( 159 days).
011126:  Applicant returned to military control .
011126:  Applicant to confinement at Marine Corps Base brig .

011210 :  Charge preferred against Applicant for violation of the Uniform Code of Military Justice (UCMJ) Article 86.
020118 :  Special Court Martial
         Charge I: violation of the UCMJ, Article 86:
         Specification: Did, on or about 010614, absent himself from his unit, and did remain so absent until on 011120.
         Plea: Guilty. Findings: G uilty .
         Applicant requested bad conduct discharge .
         Sentence: Confinement for 90 days, forfeiture of $ 600. 00 per month for 3 month s , reduction to E-1, Bad Conduct discharge.
         CA 020619 : T he sentence approved and ordered executed, except for bad conduct discharge , however, all confinement in excess of 70 days is suspended for a period of twelve months.
        
020118:  Applicant acknowledged in writing understanding of appellate rights.

 020128 :  Applicant to voluntary appellate leave.
020530:  SJA recommends approval of the sentence as adjudged.
020619:  Applicant to involuntary appellate leave.
021011 :  NMCCCA: Affirmed findings and sentence.

030115 :  Appellate review complete.
030131 :  SSPCMO: Article 71c, UCMJ, having been complied with, Bad Conduct discharge ordered executed.
Service Record was missing elements of the Summary of Service.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20030206 with a bad conduct discharge which was the sentence adjudged by a properly convened special court-martial. That sentence was subsequently approved and affirmed by the convening and appellate review authorities, respectively (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. The Applicant’s claim to the NDRB that he did not understand the consequences of his request for a bad conduct discharge are in direct contradiction to his court-martial testimony, in which he explicitly acknowledged his understanding of the negative consequences of his request in detail. Relief denied.

The following is provided for the edification of the Applicant. There is no law or regulation, which provides that an unfavorable discharge may be upgraded based solely on the passage of time or good conduct in civilian life subsequent to leaving Naval service. The NDRB is authorized to consider post-service factors in the recharacterization of a discharge to the extent such matters provide a basis for a more thorough understanding of the Applicant’s performance and conduct during the period of service under review. Examples of documentation that should be provided to the Board include proof of educational pursuits, verifiable employment records, documentation of community service, and certification of non-involvement with civil authorities. As of this time, the Applicant has not provided any post-service documentation to consider mitigating the misconduct that resulted in the chara cterization of discharge. 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 P1900.16F), 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 u pon conviction by a special or general court-martial for violation of the UCMJ, Article 86, absence without leave 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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