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USMC | DRB | 1999_Marine | MD99-00844
Original file (MD99-00844.rtf) Auto-classification: Denied


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

ex-Pvt, USMC
Docket No. MD99-00844

Applicant’s Request
The application for discharge review, received 990603, requested that the characterization of service on the discharge be changed to general/under honorable conditions. 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 000410. After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, NDRB discerned no impropriety but did discern inequity in the characterization of the applicant’s service. The Board vote was unanimous that the character of the discharge shall change. The discharge shall change to: GENERAL(UNDER HONORABLE CONDITIONS)/As a result of a courts-martial (SPCM) – Other, authority: MARCORSEPMAN Par. 1105.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

 1. What I did was very wrong, I know and I admit it, but you know what being 19 or 20 at that time we or I tend to do thing that are very dumb and stupid. Now that I'm 35 I look back and cannot believe that I did something that stupid and how now it just eats at me the fact that I rcvd a oth discharge. I'm proud of the fact that I'm a marine and served my country well for 3 yrs, but also makes me cringe when I think how it ended with me receiving the OTH, I often say to my wife"if there was one thing that I could go back and change in my past it would be this", It would be my time in the corps, I would do it so differently. God knows that this thing, the check that I wrote and bounced I would never never do that now please give a chance and upgrade my discharge.

 Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
Character Reference Letters (4)
Character Reference Letter from wife
Employment Reference Letter

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: USMC              None
         Inactive: USMCR(J)                821227 – 830116  COG

 Period of Service Under Review :
Date of Enlistment: 830117               Date of Discharge: 870506

 Length of Service (years, months, days):

         Active: 03 07 06
         Inactive: None

 Age at Entry: 18                          Years Contracted: 3

 Education Level: 11                        AFQT: 80

 Highest Rank: LCpl

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 4.2 (9)                       Conduct: 3.8 (9)

 Military Decorations: None

 Unit/Campaign/Service Awards: Rifle Marksman Badge (2), Meritorious Mast, SSDR, MUC

Days of Unauthorized Absence: 29

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 :

830830:  NJP for violation of UCMJ, Article 86: UA from MCB, CamPen, CA from 0731, 830707 to 1530, 830803 (29 days/S).
         Award: Forfeiture of $100 per month for 1 month, restriction and extra duty for 14 days to run concurrently without suspension from duty. That portion of the punishment that exceeds 7 days restriction and 7 days extra duty is hereby suspended for 3 months. Not appealed.
840301:  Counseled for deficiencies in performance and conduct. [Poor professional attitude in maintaining my personal appearance and weight.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

840902:  Counseled for deficiencies in performance and conduct. [Poor professional attitude in maintaining my personal appearance and weight.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
850813:  Special Court-Martial.
         Charge I: violation of the UCMJ, Article 123 (14 Specification), Unlawfully make and utter certain checks.
         Findings: to Charge I, specifications 1 through 4 withdrawn, specifications 5 through 14, guilty.
         Sentence: Confinement for 4 months, forfeiture of $413.00 pay per month for 4 months, reduction to E-1.
         CA 850916: Sentence approved and ordered executed.
                   SA 850919: Approved as adjudged.

850813:  To confinement.

851031:  From confinement, to duty.

860116:  To confinement.

 860218:  Special Court-Martial.
         Charge I: violation of the UCMJ, Article 80 (1 Specification), Wrongfully attempt to make and utter a bad check.
         Charge II: violation of the UCMJ, Article 123a (8 Specifications), Wrongfully uttered and made bad checks.
         Findings: to Charge I and specification 1 thereunder, guilty. .To Charge II and specifications 1 through 8 thereunder, guilty.
         Sentence: Confinement for 6 months, forfeiture of $426.00 pay per month for 6 months, and a bad conduct discharge.
         CA 860606: Sentence approved and ordered executed except for the BCD.

860610:  From confinement, to duty.

860618:  To appellate leave.

860812:  NC&PB denied clemency and restoration.

860828:  NMCCMR: Affirmed findings and sentence.

870415:  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 870506 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) at the time of issuance.



The Board, after reviewing the applicant’s post-service, however, grants equitable relief as authorized under provisions of SECNAVINST 5420.174C, enclosure (1), paragraph 9.3. The Board determined that while the applicant’s post-service record warrants an upgrade to general, the applicant’s overall record of service does not warrant an honorable discharge.

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 P1900.16C), effective 821001 until 890626.

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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