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Last saved by: shirley.robertson
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Docket No. MD04-00324

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

ex-Pvt, USMC
Docket No. MD04-00324

Applicant’s Request

The application for discharge review was received on 20031210.  The Applicant requests the reason for the discharge be changed to general/under honorable conditions.  The Applicant requests a documentary record discharge review.  The Applicant did not list a representative on his DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20040812.  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.  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 stated

Applicant’s issues, as stated on the application:

1.  “I request for a discharge upgrade to a general discharge.  My issue for this is that upon my separation from HQSVC BN MCB Camp S. D. Butler I served 7 (seven) months of service without incident.  I had been released from confinement and for seven months honorabaly served my country.  I understand that I caused myself to receive a bad conduct discharge.  I hold myself fully accountable.

I respectfully request for my discharge to be upgraded to Item 3 on page one.”

Documentation

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

Copy of DD Form 214

PART II - SUMMARY OF SERVICE

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

	Active:   None	
	Inactive: None	

Period of Service Under Review:

Date of Enlistment:  960604		Date of Discharge:  020326

Length of Service (years, months, days):

	Active:    05  06  14
	Inactive:  None

Age at Entry:  21			Years Contracted:  4 

Education Level:  12			AFQT:  75

Highest Rank:  LCpl

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  4.4 (5)			Conduct:  4.4 (5)

Military Decorations:  None

Unit/Campaign/Service Awards:  OSR, LtrApp 

Days of Unauthorized Absence:  None 

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:

980130:	Counseled for deficiencies in performance and conduct.  [Financial irresponsibility and the uttering of bad checks.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

990306:	NJP for violation of UCMJ, Article 92:  Failure to obey a lawful order
Awd red to PFC, E-2, and forfeiture of $537.00 per month for 2 months.  Not appealed.

990826:	Special Court-Martial.
	Charge I:  violation of the UCMJ, Article 121 (2 Specifications):
	Specification 1:  … did, … steal $390.90 U. S. Currency.
	Specification 2:  … did, … steal a checkbook, of some value, ...
	Charge II:  violation of the UCMJ, Article 123 (2 Specifications):
	Specification 1:  … did, … with intent to defraud, falsely make the signature Lance Corporal M_ J. H_ as an endorsement to certain checks… Total:  $418.90.
Specification 2:  … did, … with intent to defraud, utter certain checks … Total:  $418.90.
	Charge III:  violation of the UCMJ, Article 134.
	Specification:  … did, … wrongfully and unlawfully make under oath a false statement …
Findings:  to Charge I and specification 1 thereunder, dismissed.  To specification 2 under Charge I, guilty.  To Charge II and specification 1 thereunder, dismissed.  To specification 2 under Charge II, guilty.  To Charge III and the specification thereunder, guilty.
Sentence:  Reduction to E-1, forf $600.00 per month for 6 months, confined for four months, and a bad conduct discharge.
	CA 000601:  Sentence approved and ordered executed except for the BCD.

990826:	To confinement, Sentence of SPCM.

991204:	From confinement, to duty.

010918:	NMCCMR:  Affirmed findings and sentence.

020326:	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 20020326 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).  The Board presumed regularity in the conduct of governmental affairs (C).  

Issue 1:  In response to the Applicant's issue, relevant and material details 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 tried under the Uniform Code of Military Justice, the action of the NDRB is restricted to upgrades based upon clemency only (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 service records that the Board reviewed showed no mitigating or extenuating factors sufficient to offset the seriousness of the offenses for which the discharge was awarded.  Relief is therefore denied.
 
The following is provided for the edification of the Applicant.  There is no law or regulation that provides for an unfavorable discharge to be upgraded based solely on the passage of time or good conduct in the civilian life subsequent to leaving the service.  However, the NDRB is authorized to consider post-service factors in the recharacteriza-tion of a discharge.  Outstanding post-service conduct, to the extent that such matters provide a basis for a more thorough understanding of the Applicant's performance and conduct during the period of service under review may be considered.  Verifiable proof of post-service accomplishments must be provided in order for the Applicant to claim post-service conduct and behavior as a reason to upgrade a less than honorable discharge.  Evidence of continuing educational pursuits, an employment record, documentation of community service, certification of non-involvement with civil authorities, and credible evidence of a substance-free lifestyle are examples of verifiable documents that may be provided to receive consideration for relief based on post-service conduct.  At this time, the Applicant has not provided sufficient documentation for the Board to consider an upgrade.
 
The Applicant is reminded that she remains eligible for a personal appearance hearing, provided an application is received at the NDRB within 15 years from the date of her 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 92, Failure to obey order or regulation; Article 121, Larceny and wrongful appropriation; Article 123, Forgery; Article 134, Making false statements under oath.

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.  

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.