Search Decisions

Decision Text

USMC | DRB | 2006_Marine | MD0600858
Original file (MD0600858.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. MD06-00858

Applicant ’s Request
The application for discharge review was received on 20060506 . The Applicant requests the Discharge Characterization of Service received at the time of discharge be changed to entry level separation or uncharacterized. 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.

The NDRB did note administrative error(s) on the original DD Form 214. Block 28, Narrative Reason for Separation, should read: “ COURT-MARTIAL .” 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 – Quality of service
Equity – Family situation

Documentation
In addition to the service and medical records, the following additional documentation, submitted by the Applicant, was considered:
Applicant ’s DD Form 214
 Applicant’s statement (not dated)

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USMCR (DEP)    19961024 - 19961201       COG
         Active: None
Period of Service Under Review :
Date of Enlistment: 19961202              Date of Discharge: 19991129

Length of Service (years, months, days):

 Active: 02 11 28 (Does not exclude lost time.)
         Inactive: None

 Time Lost During This Period (days):
         Unauthorized absence: 136 day s
         Confinement:     48 days  

Age at Entry: 1 9

Years Contracted: 4
Education Level: 12                                 AFQT: 31

Highest Rank: PFC                                    MOS: 0131

Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 2 . 3 ( 5 )                                 Conduct: 3 . 2 ( 4 )
Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as stated on the DD Form 214): Rifle Sharpshooter Badge


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 :

970910:  Applicant to UA at 0730, 970909.

970930:  Applicant from UA at 0731, 970930 (surrendered).

971006:  Applicant to UA at 0731, 971003.

971106:  Applicant declared a deserter as of 0731, 971003.

 980128:  Applicant to pretrial confinement.
980129:  The mark of desertion under 971003 is removed. Referred to tr i al for the offense of UA only.
980209 :  Charges preferred for violation of the Uniform Code of Military Justice (UCMJ) Article 86 (3 specifications): Specification 1: On or about 0730, 970807, absent himself and did remain so absent until on or about 2130, 970807.
         Specification 2: On or about 970909, absent himself from and did remain so absent until on or about 970930.
         Specification 3: Did, on or about 971003, absent himself from and did remain so absent until on or about 980128.

980211:  Applicant notified of charges.

 980211 :  Charges referred to special court-martial.
980222:  Applicant from pretrial confinement.

 980223 :  Special Court Martial
          Charge I: violation of the UCMJ, Article 86 ( 3 specifications).
         Specification 1: On or about 0730, 970807, absent himself and did remain so absent until on or about 2130, 970807. Plea : Guilty. Finding : Guilty.
         Specification 2: On or about 970909, absent himself from and did remain so absent until on or about 970930. Plea : Guilty. Finding : Guilty.
         Specification 3: Did, on or about 971003, absent himself from and did remain so absent until on or about 980128. Plea : Guilty. Finding : Guilty.
          Sentence: Confinement for 90 days, forfeiture of $ 617.00 per month for 3 month s , reduction to E-1, Bad Conduct discharge.
         CA 981020 : T he sentence approved and ordered executed, except for bad conduct discharg e, but the execution of that part of the sentence extending to confinement in excess of 60 days is suspended for a period of 6 months.
         SA: see SSPCMO.
980223:  Applicant to confinement.
980225:  Applicant signed appellate rights statement.
980317:  Applicant from confinement.

9 8 0 318 :  Applicant to appellate leave.
990805 :  NMCCCA: Affirmed findings and sentence.

991117 :  Appellate review complete.

 991129 :  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 19991129 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).

Equity – Quality of service: The Applicant contends that his discharge should be upgraded because he performed his job extremely well.

Equity – Family situation: The Applicant states that he did not want to deploy with his unit because he did not want to leave his son behind.

In response to the Applicant’s issues, 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. Relief denied.

The Applicant specifically requested that the Board change his discharge to entry level separation or uncharacterized. For the Applicant’s edification, by regulation, only members notified of intended recommendation for discharge within the first 180 days of enlistment are eligible for an uncharacterized or entry-level separation characterization of service.

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 P1900.16E), effective 950818 until 010831.

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, [ 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

Similar Decisions

  • NAVY | DRB | 2001_Navy | ND01-00565

    Original file (ND01-00565.rtf) Auto-classification: Denied

    After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, the Board found that the discharge was proper and equitable (C and D). The applicant’s eighth issue states: “I have received treatment and ready to come back home in the navy.” The applicant failed to provide documentary evidence to support his sobriety and post service accomplishments. Evidence of continuing educational pursuits, an employment record, documentation of community...

  • USMC | DRB | 2006_Marine | MD0600250

    Original file (MD0600250.rtf) Auto-classification: Denied

    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. PART I - APPLICANT’S ISSUES AND DOCUMENTATION Issues, as stated The Applicant and his Representative submitted the following issue, which supersedes all prior issues submitted to the Board:“I request my Bad Conduct Discharge be upgraded to a General Discharge due to equitable...

  • NAVY | DRB | 2006_Navy | ND0600792

    Original file (ND0600792.rtf) Auto-classification: Denied

    Decisional Issues None 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: USNR (DEP) 19911106 – 19920824 COGActive: None Period of Service Under Review :Date of Enlistment: 19920825 Date of Discharge: 19951128 Length of Service (years, months, days):03 03 04(Does...

  • USMC | DRB | 2006_Marine | MD0600028

    Original file (MD0600028.rtf) Auto-classification: Denied

    MD06-00028 Applicant’s Request The application for discharge review was received on 20050923. The discharge shall remain as a bad conduct discharge by reason of court-marital. PART I - APPLICANT’S ISSUES AND DOCUMENTATION

  • NAVY | DRB | 2006_Navy | ND0600312

    Original file (ND0600312.rtf) Auto-classification: Denied

    ND06-00312 Applicant’s Request The application for discharge review was received on 20051207. No indication of appeal in the record.900907: NJP for violation of UCMJ, Article 86: Absence from appointed of duty, restricted muster 900907. 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 sufficient to merit clemency (C).

  • USMC | DRB | 2006_Marine | MD0600502

    Original file (MD0600502.rtf) Auto-classification: Denied

    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. PART I - APPLICANT’S ISSUES AND DOCUMENTATION Applicant chose to make a rebuttal.010606: Applicant’s rebuttal page 11 entry.010703: NAVDRUGLAB, SAN DIEGO, CA, reported Applicant’s urine sample, received 010629, tested positive for THC.010901: Counseling: Advised of deficiencies...

  • USMC | DRB | 2002_Marine | MD02-01033

    Original file (MD02-01033.rtf) Auto-classification: Denied

    After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, NDRB discerned no impropriety or inequity in the characterization of the Applicant’s service. PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW Discussion The Applicant was discharged on 970909 with a bad conduct discharge which was the sentence adjudged by a properly constituted special court-martial that was determined to be legal and proper, affirmed by appellate...

  • USMC | DRB | 2005_Marine | MD0501311

    Original file (MD0501311.rtf) Auto-classification: Denied

    The Applicant requests the Discharge Characterization of Service received at the time of discharge be changed to honorable and the Narrative Reason for Separation be changed to “MEDICAL.” The Applicant requests a documentary record discharge review. “Dear Chairperson: After a review of the Former Service Members (FSM) DD Form 293 Application for the Review of Discharge or Dismissal from the Armed Forces of the United States and all of evidence assembled for review, we continue to note the...

  • NAVY | DRB | 2006_Navy | ND0601057

    Original file (ND0601057.rtf) Auto-classification: Denied

    Elements of Discharge: [BCD] Record of Trial Complete: Date Charges Preferred: 19830203 Date Charges Referred to Special Court-Martial: 19830215 Trial Date: 19830225Applicant requested BCD: Length of BCD Suspension:Date Applicant to Confinement: 19830225 Date Applicant from Confinement: 19830415Date Applicant to Voluntary Appellate Leave: 19830419NC&PB Action and Date: Clemency review waived 19920224NMCCA Action and Date: Affirmed findings and sentence on 19830727Date Appellate Review...

  • NAVY | DRB | 2005_Navy | ND0501512

    Original file (ND0501512.rtf) Auto-classification: Denied

    Documentation In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:DD Form 149 PART II - SUMMARY OF SERVICE Prior Service (component, dates of service, type of discharge): Inactive: None Active: None Period of Service Under Review :Date of Enlistment: 19870924 Date of Discharge: 20010205 Length of Service (years, months, days):Active: 13 04 12 (Does not exclude lost time.) Sentence: Confinement for 65 days, and to be discharge...