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Docket No. MD04-01439

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

ex-PVT, USMC
Docket No. MD04-01439

Applicant’s Request

The application for discharge review was received on 20040913.  The Applicant requests the 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 list any representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20041222.  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/As a result of a courts-martial (SPCM) – Other, authority: MARCORSEPMAN Par. 1105.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

“1.  (Equity Issue) My discharge was too harsh in light of my otherwise creditable service record.  4.6 proficiency and conduct marks and good conduct medal.
2. (Equity Issue) I request the board review my post service conduct, employment record and educational pursuits.
3.  (Equity Issue) I have paid back the entire over payment including interest. “

Documentation

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

Copy of Applicant’s DD Form 214
Copy of Community College Transfer Credit Summary, (not dated)
Copy of Clemency Request, dtd 15 Mar 90
Applicant’s Social Security Statement, dtd March 12, 2003
Copy of Michigan State Police Records Check, dtd 11/06/2003
Copy of Applicant’s Earning Statement, dtd 11/15/2003
Copy of verification of Applicant’s Employment, (3 pages) dtd April 22, 2003
Copy of DFAS Letter of Indebtedness to Applicant, dtd 22 Aug 1991
DFAS Statement of Applicant “Paid in Full”, dtd 05/02/96
Copy of Mexican Marriage License, td 12 November 2003
Official Community College Transcript, dtd Nov 11, 2003

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: USMCR(J)		840804 - 850722	COG

Period of Service Under Review:

Date of Enlistment:  850723		Date of Discharge:  910301

Length of Service (years, months, days):

	Active:    05  07  06 (includes time lost during this period)
	Inactive:  None

Age at Entry:  18			Years Contracted:  4 

Education Level:  12			AFQT:  76

Highest Rank:  CPL			MOS:  0331

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  4.4 (10)			Conduct:  4.2 (10)

Military Decorations:  None

Unit/Campaign/Service Awards:  REB, PSB, SSDR, GCM

Days of Unauthorized Absence:  34

Character, Narrative Reason, and Authority of Discharge (at time of issuance):

BAD CONDUCT DISCHARGE/As a result of a courts-martial (SPCM) - Other, authority:  MARCORSEPMAN Par. 1105.

Chronological Listing of Significant Service Events:

880409:	Applicant to UA (AWOL) at 0701, 880409.

880413:	Applicant from UA (AWOL) at 2300, 880413.

880421:	NJP for violation of UCMJ, Articles 86 and 91:
Violation of UCMJ Article 86: UA 0701, 880409 to 2300, 880413 from HQSVCCo, 1^st Bn, 5thMar.
Violation of UCMJ Article 91: At HQSVCCo, 1^st Bn, 5thMar, on 880405, SNM [Applicant] did, after being given a lawful order from 1stSgt B_ to move from Bks #33324 to Bks #33323, willfully disobey the same.
Awarded: forfeiture of $196.00 pay per month for 1 month, restriction to the limits of HQSVCCo,, 1stBn, 5thMar, chowhall, chapel for 14 days without suspension from duty, and extra duty for 14 days, to run concurrently.  
Suspension: The 14 days restriction is suspended for 4 months, at which time unless sooner vacated, will be remitted without further action.   Not appealed.

890427:	Applicant to UA (AWOL) at 1530, 890427.

890527:	Applicant from UA (AWOL) at 2230, 890527.

891023:	Counseled for deficiencies in performance and conduct.  [ Financial responsibility concerning your failure to make payments to your creditors.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

891026:	Special Court-Martial.
	Charge I:  violation of the UCMJ, Article 81 (1 Specification).
	Specification 1: On 10 Sep 88, conspire with R_ M. Q_ to commit larceny of U.S. Currency, of a value of more than $100.00, the property of the USMC.
	Charge II:  violation of the UCMJ, Article 86 (1 Specification).
	Specification: On 27 Apr 89, absent from unit until 27 May 89.
	Charge III:  violation of the UCMJ, Article 107 (1 Specification).
	Specification: On 2 Dec 89, with intent to deceive sign an official record.
	Charge IV:  violation of the UCMJ, Article 121 (1 Specification).
	Specification: Between 10 Sep 88 and 26 Apr 89 steal U.S. Currency of a value more than $100.00, the property of the USMC, by wrongfully submitting a false statement to Variable Housing Allowance Approval.
	Charge V:  violation of the UCMJ, Article 134 (2 Specifications).
	Specification 1:  On 27 Apr 89, wrongfully endeavor to impede an investigation by trying to influence the testimony of T_ J. S_.
	Specification 2:  On 27 Apr 89, wrongfully endeavor to impede an investigation by trying to influence the testimony of M_ R. Q_.
	Findings:  to Charge I and specification 1 thereunder, guilty.  To Charge II and specification thereunder, guilty.  To Charge III and specification thereunder, guilty.  To Charge IV and specification thereunder, guilty.  To charge V, and the specifications thereunder, withdrawn.
	Sentence:  BCD, confinement for 5 months, forfeiture of $466.00 pay per month for 5 months, and reduction to PVT/E-1.
	CA 891026:  Sentence approved and ordered executed except for the BCD.
	
891026:	To confinement, Sentence of SPCM.

900222:	From confinement, to duty.

900312:	To appellate leave.

900725:	NMCCMR:  Affirmed findings and sentence.

900814:	NC&PB denied clemency and restoration.

910304:	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 19910301 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).  

Issues 1, 2 &3.  In response to the Applicant’s issues, relevant and material facts stated in a court-martial specifications, 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 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 other evidence related to his discharge at that time.  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 COURTS-MARTIAL, of the Marine Corps Separation and Retirement Manual, (MCO P1900.16D), effective 27 Jun 89 until 17 Aug 95.

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, 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 “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

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.