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USMC | DRB | 1999_Marine | MD99-00441
Original file (MD99-00441.rtf) Auto-classification: Denied


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

ex-PVT, USMC
Docket No. MD99-00441

Applicant’s Request
The application for discharge review, received 990208, requested that the characterization of service on the discharge be changed to honorable. The applicant requested 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 991206. 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/As a result of a courts-martial (SPCM) – Other, authority: MARCORSEPMAN Par. 1105.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

 Prior to the documentary discharge review, the applicant introduced no issues in block 8 on the DD Form 293. The applicant did provide a personal statement regarding his discharge. The applicant stated, “my rights as an individual were infringed upon…”

Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
Statement from applicant
Letter from NMCARA (2pgs)
NMCCMR decision (2pgs)
Copy of SPCM Convening Authority Action (3pgs)
Copy of Letter to Transfer to Appellate Leave
Copy of SPCM Supplemental Order
Copy of DD Form 214
Letter from Appellate Defense Counsel
CO's letter to parents in reference to son's UA.
Letter in reply to NMCCMR decision

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: USMC              None
         Inactive: USMCR(J)                900615 - 900715  COG

 Period of Service Under Review :
Date of Enlistment: 900716               Date of Discharge: 950213

 Length of Service (years, months, days):

         Active: 04 06 00
         Inactive: None

 Age at Entry: 18                          Years Contracted: 4

 Education Level: 12                        AFQT: 61

 Highest Rank: LCpl

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 4.3 (10)                      Conduct: 3.7(10) Marks provided in BCD petition for review.
Military Decorations: None

 Unit/Campaign/Service Awards: Pistol Marksman Badge, Rifle Expert Badge, Cert Apprec., NDSM, OSR,

Days of Unauthorized Absence: 28

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 :

910618:  NJP for violation of UCMJ, Article 134 while posted as a sentry loitered on his post.
         Award: Restriction and extra duty for 14 days. Not appealed.

911025:  NJP for violation of UCMJ, Article 134: (3 Specifications), Spec 1: Falsely pretend to be a command sponsor for two officers and by means thereof did wrongfully obtained from Avis car rental services, Spec 2: Made and uttered to MWR on 910814, a certain check and dishonorable failed to maintain sufficient funds, Spec 3: Made and uttered to MWR on 910823, a certain check and dishonorable failed to maintain sufficient funds, Spec 4: Made and uttered to NEX on 910829, a certain check and dishonorably failed to maintain sufficient funds.
         Award: Forfeiture of $421.00 per month for 2 months (suspended for 6 months), restriction and extra duty for 30 days to run concurrently. Not appealed.

911115:  Counseled for deficiencies in performance and conduct. [Pattern of civil and military misconduct, poor judgement and insubordinate attitude] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

920719:  Counseled on the provision of MCO 6100.10A with regards to being assigned to weight control program and that SNM has a 6 months period to lose the prescribed weight to reach Marine Corps weight standards; failure to conform may result in discharge.

920828:  Counseled for unsatisfactory progress while assigned to weight control program. Your current weight of 218lbs is 41lbs over your weight when initially assigned to weight control. If your progress does not improve this may result in discharge.

930225:  NJP for violation of UCMJ, Article 91: Disobeyed a direct order, to wit: K Co, BLT 3/8.
 Awarded forfeiture of $233.00 per month for 1 month (suspended for 3 months), restriction to the limits of BLT 3/8 for a period of 14 days to run concurrent with 14 days extra duties. Not appealed.
930407:  Applicant declared a deserter on 930407 having been an unauthorized absentee since 0631, 930308 from Battalion Landing Team 3/8.

930713:  Special Court-Martial.
         Charge I: violation of the UCMJ, Article 86: Without authority absent himself from his unit 930308-930405(28days/S)
         Charge II: violation of the UCMJ, Article 87: Missed movement.
         Findings: to Charge I and specification 1 thereunder, guilty. To Charge II and specification 1 thereunder, guilty.
         Sentence: Confinement for 100 days, forfeiture of $540.00 pay per month for 3 months, reduction to E-1, and a bad conduct discharge.
        
CA 931221 : Sentence approved and, except for the BCD, will be executed, but that part of the sentence extending to confinement in excess of 75 days is suspended for a period of six months from the date of trial, at which time, unless sooner vacated, the suspended part of the sentence will be remitted without further action.
         
930713:  Applicant waived clemency review.

930914:  To appellate leave.

931221:  To involuntary appellate leave.

940620:  Transferred to NAMALA.

940729:  NMCCMR: Affirmed findings and sentence.

950131:  COMA: Petition for review denied.

950213:  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 950213 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).

The applicant introduced no decisional issues for consideration by the Board. The Board considered the documentation submitted by the applicant, including his personal statement, and voted that no relief was warranted in his case..

 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 [ e.g., Article 86, unauthorized absence for more than 30 days].
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 obtain a copy of DoD Directive 1332.28 by writing to:
                  DA Military Review Boards Agency
                  Management Information and Support Directorate
                  Armed Forces Reading Room
                  Washington, D.C. 20310-1809

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
                  Washington Navy Yard
                  720 Kennon Street SE Rm 309
                  Washington, D.C. 20374-5023     


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