Author: CAP
Last saved by: joyce.meeks
Company: NCPB

Docket No. MD05-00957

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

FOR OFFICIAL USE ONLY

 ex-PVT, USMC
Docket No. MD05-00957

Applicant’s Request

The application for discharge review was received on 20050509.  The Applicant requests the Discharge 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 designate a representative on the DD Form 293.  Subsequent to the application, the applicant obtained representation by the Veterans of Foreign Wars. 

Decision

A documentary discharge review was conducted in Washington, D.C. on 20051006.  After a thorough review of the available 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 as a Bad Conduct Discharge by reason of Court-Marital.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the attached document/letter to the Board:

“To Whom It May Concern:

My name is R_ P. S_, I served honorable in the United States Marine Corps for from January 24^th 1994 to about April 15^th 1999 when I was given a Special Court Martial.  Since I have been separated my life has been somewhat better I am currently enrolled in College working on my Bachelors in Business accounting and teach part time at my local High School.  But most of all, I still miss the Marine Corps and all the great people that I’ve worked with side by side keeping this great country free.  What I did to cause me to receive a Bad Conduct discharge I truly with all my heart regret y action.

Now that I have been released from the Military Appellate Leave Status an been given a new chance to start my career over I respectfully request that my Bad Conduct Discharge be changed to General/under Honorable condition.  Since my departure from service I have lost two jobs based on my Bad Conduct discharge this has hurt my family and me financially.  I admit what I did was dump and stupid but I don’t think that I should have to suffer for my entire life for some thing that I did in the past.  Changing my discharge would help me get a better job such as a Stock Broker, Fire fighter or Police office in my hometown.  There are many Civil Service jobs that I know that I qualify for but I cannot apply for based on my discharge.  I hope you under stand my reason for this change I just want a better career changing my discharge would give me a better chance for my family and me.”

Respectfully
[signed] R_ P. S_ (Applicant)”

Additional issues submitted by Applicant’s representative (Veterans of Foreign Wars):

“Propriety or Equity Issue(s):  

Statement:  In accordance with 32 CFR § 724, and SECNAVINST 5420.174D, the Veterans of Foreign Wars submits to the Naval Discharge Review Board (NDRB) the above issue and following statement in supplement to the Applicant’s petition

Mr. S_ (Applicant) served honorably in the USMC from Jan. 24, 1994 to Nov. 25, 1998.  He re-enlisted on Nov. 26, 1998 and was awarded a Bad Conduct Discharge at a trial by Special Court-Martial.  

Mr. S_ (Applicant) is the recipient of the National Defense Service Medal, the Good Conduct Medal, the Sea Service Deployment Ribbon (2^nd Award) and 3 Certificates of Commendation.

Mr. S_ (Applicant) was adjudged guilty of numerous specifications of violations of Articles 80, 121, and 134 under the Uniform Code of Military Justice at his trial by Special Court-Martial.  The judgment was reviewed and largely affirmed by the next higher court.

Mr. S_ (Applicant) is seeking a compassionate upgrade and clemency for his Bad Conduct Discharge.  He has had difficulties maintaining gainful employment and providing for his family since his discharge from the Marine Corps.  The VFW supports Mr. S_ (Applicant)’s request for relief.

The Veterans of Foreign Wars’ express purpose in providing this statement and any other submittals or evidence filed is to assist this applicant in the clarification and resolution of the impropriety or inequity raised.  To that end, we rest assured that the NDRB’s final decision will reflect sound equitable principles consistent in law, regulation, policy and discretion as promulgated by title 10 USC § 1553, and set forth in 32 CFR § 724 and SECNAVINST 5420.174D.

This case is now respectfully submitted for deliberation and disposition.”

Documentation

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

Applicant’s DD Form 214 (3)

PART II - SUMMARY OF SERVICE

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

	Inactive: USMCR (DEP)	19931218 – 19940123		COG
	Active:   USMC 		19940124 – 19981124		HON

Period of Service Under Review:

Date of Enlistment:  19981125		Date of Discharge:  20020416

Length of Service (years, months, days):

Active:    03  04  22  (Does not exclude lost time.)
	Inactive:  None

Time Lost During This Period (days):

	Unauthorized absence:  none
	Confinement:		  91 days

Age at Entry:  30

Years Contracted:  4 

Education Level:  14				AFQT:  32

Highest Rank:  SGT				MOS:  0131

Final Enlisted Performance Evaluation Averages (number of marks): USMC Fitness Reports were available to the Board for review.

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as stated on the DD Form 214):  Rifle Sharpshooter Badge, National Defense Service Medal, Good Conduct Medal, Sea Service Deployment Ribbon (2), Certificate of Commendation (2), CMC Certificate of Commendation.

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:

981125:	Reenlisted this date for a term of 4 years.

990428:	Special Court Martial [trial dates 990428]
	Charge I:  violation of the UCMJ, Article 80, (2 specifications).
	Specification 1:  On or about 5 December 98, at Camp Pendleton, CA, attempted to steal U.S. currency of a value of about $61.50, the property of Cpl J. R. W_, USMC.
	Specification 2:  On or about 15 December 98, at or near Camp Pendleton, CA, or unknown location, attempted to steal U.S. currency of a value of about $403.00, the property of Cpl J. R. W_, USMC
Charge II:  violation of UMCJ, Article 121 (7 Specifications). Specification 1: On or about 13 November 98, at Camp Pendleton, CA, stole U.S. currency of a value of about $401.00, the property of Cpl R. R. C_, USMC.
Specification 2: On divers occasions, on or about December 98, at Camp Pendleton, CA, Tijuana, Mexico, Oceanside, CA, or unknown location, stole U.S. currency of a value in excess of $100.00, the property of Cpl J. R. W_, USMC.
Specification 3: On divers occasions, on or about 5 December 98, at Camp Pendleton, CA, stole U.S. currency of a value in excess of $100.00, the property of Cpl J. R. W_, USMC.
Specification 4: On or about 11 December 98, at Camp Pendleton, CA, stole U.S. currency of a value of about $40.00, the property of Cpl J. R. W_, USMC.
Specification 5: On divers occasions, on or about 12 December 98, at or near Tijuana, Mexico, and San Diego, CA, stole U.S. currency of a total value of about $121.87, the property of Cpl J. R. W_, USMC.
Specification 6: On or about 19 December 98, at or near Oceanside, CA, or unknown location, stole U.S. currency of a value of about $41.50, the property of Cpl J. R. W_, USMC.
Specification 7: On or about 31 December 98, at or near Oceanside, CA, or unknown location, stole U.S. currency of a value of about $81.50, the property of Cpl J. R. W_, USMC.
	Charge III:  violation of UMCJ, Article 134:
Specification: On or about 7 November 98, at Camp Pendleton, CA, wrongfully stole certain mail matter, to wit: a Navy Federal Credit Union envelope containing an ATM card and addressed to Cpl R. R. C_, USMC, and a Navy Federal Credit Union envelope containing an ATM Card and addressed to Cpl J.R. W_, USMC, which said cards were then in the custody of the accused in his capacity as a HMLA-367, MAG-39, mail clerk/orderly, before the cards were delivered to the addressees. 
	Findings:  to Charge I and specifications 1 and 2 thereunder, guilty; to Charge II and specifications 1, 3, 4, 5, 6, and 7 thereunder, guilty; specification 2 thereunder charge II, guilty***; to Charge III and specification thereunder, guilty.

*** The military judge found this specification multiplicous for findings and sentencing with spec 3-7. 
	
Sentence:  Confinement for 6 months, forfeiture of $639 per month for 6 months, reduction to E-1, Bad Conduct discharge.
	CA 000105:  The sentence approved and except for bad conduct discharge, will be executed.  Execution of that part of the sentence adjudging confinement in excess of 115 days is suspended for twelve months from the date of the trial at which time, unless sooner vacated, the suspended portion will be remitted without further action.  Furthermore, execution of the adjudged forfeitures will be suspended for twelve months from the date of this action, at which time, unless sooner vacated, all suspended adjudged forfeitures will be remitted without further action.
	SA:  see SSPCMO.
	
990428:	Joined the Base Brig, Marine Corps Base, Camp Pendleton, California, for confinement.

990428:	Applicant requested voluntary appellate leave.

990729:	Applicant from confinement.

990923:	Applicant to appellate leave.

011130:	NMCCCA:  Specification 2 of Charge II is set aside and ordered dismissed.  Following corrective action, findings and sentence affirmed.  Convening authority directed to issue a corrected promulgating order consistent with this decision.  

020322:	Appellate review completed.

020416:	SSPCMO:  Article 71c, UCMJ, having been complied with, Bad Conduct discharge ordered executed.

Record of Trial for Special Court-Martial did not contain the transcript of proceedings.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20020416 with a bad conduct discharge which was the sentence adjudged by a properly convened special court-martial.  The convening and appellate review authorities subsequently approved the sentence (A and B).  After a thorough review of the available records, supporting documents, facts, and circumstances unique to this case, the Board found that the Applicant’s issues were insufficient to merit clemency (C).  The Board presumed regularity in the conduct of governmental affairs (D).  

The Applicant desires a service characterization upgrade to General (Under Honorable Conditions) in order to secure and maintain gainful employment.  The Board has no authority to upgrade a discharge for the sole purpose of enhancing employment opportunities.  In fact, the action of the NDRB is restricted to upgrades based on clemency when a discharge is adjudged by a court-martial case.  Clemency is an act of leniency that reduces the severity of the punishment imposed.  Relevant and material facts stated in a court-martial specification are presumed by the NDRB to be established facts.  After a thorough review of the Applicant’s available records and issues submitted, the Board determined that clemency is not warranted.  The sentence awarded the Applicant at his court-martial was appropriate for the offenses he committed.  This issue does not serve to provide a foundation upon which the Board can grant relief.  Relief on this basis is denied.

The Applicant advises the Board that he is currently enrolled in college and teaches part time at a local high school.  While 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 Marine Corps, the Board is authorized to consider post-service factors in the recharacterization of a discharge to the extent such matters provide a basis for a more thorough understanding of the Applicant’s performance and conduct during the period of service under review.  Verifiable proof of any 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, verifiable employment records, documented community service, and certification of non-involvement with civil authorities are examples of documentation that should have been provided to receive consideration for relief based on post-service conduct.  At this time, the Applicant did not provided any post-service documentation for consideration.  No relief is granted on this basis.

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 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 121 Larceny or Wrongful appropriation of value $100 or more and Article 134 Taking, opening, or stealing mail.

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.

D.  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