Author: CAP
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Docket No. MD02-00342

DEPARTMENT OF THE NAVY
 NAVAL DISCHARGE REVIEW BOARD (NDRB)
                     DISCHARGE REVIEW
                   DECISIONAL DOCUMENT

 ex-Pvt, USMC
Docket No. MD02-00342

Applicant’s Request

The application for discharge review, received 020129, requested that the characterization of service on the discharge be changed to general/under honorable conditions or entry level separation or uncharacterized.  The applicant requested a documentary record discharge review.  The applicant did not list a representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 020912.  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.  The Board’s vote was unanimous that the character of the discharge shall not change.  The discharge shall remain:  BAD CONDUCT DISCHARGE/COURT-MARTIAL, authority: MARCORSEPMAN Par. 1105.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as submitted

Prior to the documentary discharge review, the applicant indicated in Block 8 on the DD Form 293 that he had attached additional issues.  No issues were found. 

Documentation

In addition to the service record, the following additional documentation, submitted by the applicant, was considered:

Copies of DD Form 214 (3)
Blank Request for Restoration/Clemency
Copy of CO's Letter for Appellate Leave
Copy of Special Court-Martial Supplemental Order (4 pgs)
Copy of Charge Sheet/Convening Authority (3 pgs)
Blank Copy of Receipt and Understanding of Attorney Introduction Package
Blank Copy of Arraignment Hearing Guide (2 pgs) 

PART II - SUMMARY OF SERVICE

Prior Service (component, dates of service, type of discharge):

	Active:   USMC		None
	Inactive: USMCR(J)		970418 - 970420	COG

Period of Service Under Review:

Date of Enlistment:  970421		Date of Discharge:  990430

Length of Service (years, months, days):

	Active:    02  00  10
	Inactive:  None

Age at Entry:  18			Years Contracted:  4 

Education Level:  12			AFQT:  88

Highest Rank:  PVT

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  NMA			Conduct:  NMA

Military Decorations:  None

Unit/Campaign/Service Awards:  Rifle Marksman Badge 

Days of Unauthorized Absence:  23 

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:

971002:	NJP for violation of UCMJ, Article 86: UA (AWOL), from 0730, 970823 to 1615, 970915 (23 days).
Awarded forfeiture of $300.00 pay per month for 2 months, restriction and extra duties for 30 days.  Not appealed.

971120:	Pre-trial confinement 971120 to 980108 (49 days).
 
980109:	Special Court-Martial.
	Charge I:  violation of the UCMJ, Article 86: Did on or about 971119, without authority, absent himself from his unit, to wit: Basic Marine Platoon, Recruit Training Regiment, located at Marine Corps Recruit Depot, San Diego, California, and did remain so absent until he was apprehended on or about 971120.
	Charge II:  violation of the UCMJ, Article 107: Did on or about 971015, with intent to deceive, make to SSGT G.A. D_, an official statement, to wit:  “I received money in the mail that I used to pay my debt to MWR," which statement was totally false, and was then known by the said PVT L_ to be false.  Charge III: violation of the UCMJ, Article 121 (3 Specifications); Spec 1: Did on 971015, steal an ATM card, of some value, which was the property of PVT J_ P. H_; Spec 2: Did at or about 0915, 971015, steal $200.00, which was the property of PVT J_ P. H_; Spec 3: Did at or about 0945, 971015, steal $100.00, which was the property of PVT J_ P. H_.
	Findings:  To Charge I and specification thereunder, guilty.  To Charge II and specification thereunder, guilty.  To Charge III and specifications 1,2 and 3 thereunder, guilty.  
	Sentence:  Confinement for 5 months, forfeiture of $617.00 pay per month for 5 months, and a bad conduct discharge.
	CA 980504:  Sentence approved and, except for that part of the sentence to the BCD, will be executed, but the execution of that part of the sentence adjudging confinement in excess of sixty (60) days will be suspended for a period of six (6) months from the date of this action at which time, unless the suspension is sooner vacated, the suspended part of the sentence will be remitted without further action.
	
980130:	To appellate leave.

980930:	NMCCMR:  Affirmed findings and sentence.

990430:	SSPCMO:  Article 71c, UCMJ, having been complied with, Bad Conduct discharge will be executed.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 990430 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 in the legal chain of review and executed (A and B).  The Board presumed regularity in the conduct of governmental affairs (C).  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 (D and E).

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 (C, Part IV).  The applicant’s case was considered under the pertinent standards of equity to determine if any factors in this particular case merited clemency.  The NDRB found the applicant’s service record devoid of any mitigating or extenuating factors sufficient to offset the seriousness of the offenses for which the discharge was awarded.  Relief denied.

The applicant’s discharge characterization accurately reflects his service to his country.  The discharge was proper and equitable.  Normally, to permit relief, an error or injustice must have existed during the period of enlistment in question.  No such error or injustice occurred during the applicant’s enlistment.  The applicant is not eligible to receive an uncharacterized separation since he served longer than 180 days on active duty.  Additionally, 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 the service.  Relief not warranted.

The applicant is reminded that he remains eligible for a personal appearance hearing, provided an application is received, at the NDRB, within 15 years from the date of his 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 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 86, unauthorized absence; Article 107, lying; and Article 121, larceny.

C.  Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 2, AUTHORITY/POLICY FOR DEPARTMENTAL DISCHARGE REVIEW.  

D.  Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 9, paragraph 9.2, PROPRIETY OF THE DISCHARGE.

E.  Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 9, paragraph 9.3, EQUITY OF THE DISCHARGE.

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 Directive 1332.28, you may submit a complaint in accordance with Enclosure (5) of that Directive.  You should read Enclosure (5) of the Directive 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 Directive 1332.28 and other Decisional Documents by going online at “afls14.jag.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:

		Naval Council of Personnel Boards
		Attn:  Naval Discharge Review Board
		720 Kennon Street SE Rm 309
		Washington Navy Yard DC  20374-5023

The remaining portion of this document is divided into 4 Parts: Part I - Applicant’s Issues and Documentation, Part II - Summary of Service, Part III – Rationale for Decision and Pertinent Regulation/Law, Part IV - Information for the Applicant.
INDEX:  A6800/A0100/A9500/A9217/A9105/A9221