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Docket No. MD04-00890

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

ex-PVT, USMC
Docket No. MD04-00890

Applicant’s Request

The application for discharge review was received on 20040506.  The Applicant requests the characterization of service received at the time of discharge be changed to honorable, general/under honorable conditions, entry level separation or uncharacterized.  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 20050620.  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:  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

Applicant’s issues, as stated on the application:

1. “Dear Sirs, 
I am requesting a change in status for the reason that I wish to re-enlist in the Corps.  I was young (19) and made some bad decisions, ones that I would never make again. I am asking for the chance to be the Marine I was meant to be, and regain my pride.  If given the chance, I would do everything required with excellence and never do anything to make anyone regret giving me the chance to redeem myself & my honor.”

Documentation

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

Applicant’s DD Form 214

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: USMCR(J)		891010 - 900221	COG

Period of Service Under Review:

Date of Enlistment:  900222		Date of Discharge:  941104

Length of Service (years, months, days):

	Active:    04  01  26 		(Excludes lost time) 
	Inactive:  None

Age at Entry:  18			Years Contracted:  4 

Education Level:  12			AFQT:  90

Highest Rank:  PFC			MOS:  2141

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  3.9 (7)			Conduct:  3.2 (8)

Military Decorations:  None

Unit/Campaign/Service Awards:  RSB, NDSM 

Days of Unauthorized Absence:  48 

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:

901217:	Summary Court-Martial.
	Charge I:  violation of the UCMJ, Article 86,
	Specification: UA from 900827 until 901015 from ScolsBn, MCB, CamPen. 
	Finding:  to Charge I and the specification thereunder, guilty.
	Sentence:  Confinement for 30 days, reduced to E-1.
	CA action 901217:  Sentence approved and ordered executed.

901217:	To confinement.

910109:	Released from confinement.

911104:	Counseled for deficiencies in performance and conduct.  [Concerning his financial obligation to his wife pending his divorce, additionally SNM also counseled about his financial dealings in the local community specifically your inability to promptly pay you legal debts to creditors causing discredit to this command and the Marine Corps.] Disciplinary and discharge warning issued.

911203:	To confinement.

xxxxxx:	Counseled for deficiencies in performance and conduct.  [Concerning unsatisfactory proficiency and conduct marks for January 1992 semi-annual marking period; specifically, your proficiency mark of 3.0 and your conduct mark of 1.9 are a direct result of your lack of dependability and poor daily performance of your duties.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.  [Undated]

920128:	Special Court-Martial (Trial dates 920128 and 920212).
	Charge I:  violation of the UCMJ, Article 81:
	Specification: At CamPen, 911121, did conspire to commit an offense under the UCMJ, to wit:  to impede an investigation into the unlawful possession of C-4 explosives.
	Charge II:  violation of the UCMJ, Article 86:
	Specification 1: At CamPen, 911115, did fail to go to appointed place of duty.
	Specification 2: At CamPen, 911125, did fail to go to appointed place of duty.
	Charge III:  violation of the UCMJ, Article 121:
Specification 1: At CamPen, between 911101 and 911112 did steal two checks from PFC J. E. F____.
	Specification 2: At CamPen, between 911101 and 911112 did $340.00 from PFC J. E. F____. 
	Charge IV:  violation of the UCMJ, Article 123:
	Specification:  On 911103, falsely make in its entirety a certain check, which said would, if genuine, apparently operate to the legal harm of another.
	Findings:  to Charge I and the specification thereunder, guilty.  To Charge II and specification thereunder, guilty.  To Charge III and specifications 1 and 2 thereunder, guilty.  To Charge IV and the specification thereunder, guilty, but dismissed as multiplicious.  Specification 2 of Charge II was withdrawn.
	Sentence:  Forfeiture of $523.00 pay per month for five months, confinement for 5 months, reduction to E-1, and a bad conduct discharge.
	CA 930623:  Sentence approved and ordered executed except for the BCD.
	
920402:	From confinement, to duty.

920413:	To appellate leave.

930903:	NC&PB denied clemency and restoration.

940325:	NMCCMR:  Affirmed findings and sentence.

940601:	To involuntary appellate leave.

941104:	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 19941104 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.  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 and issue submitted, 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.

Regarding reenlistment, the NDRB has no jurisdiction over reenlistment, reentry, or reinstatement into the Navy, Marine Corps, or any other of the Armed Forces, NDRB is not authorized to change a reenlistment code.  An unfavorable “RE” code is, in itself, not a bar to reenlistment.  A request for a waiver can be submitted during the processing of a formal application for reenlistment through a recruiter.  Only the Board for Correction of Naval Records (BCNR) can make changes to reenlistment codes. Additionally, the Board has no authority to upgrade a discharge for the sole purpose of facilitating reenlistment.  

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.  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 121, larceny of more than $100.00.

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.