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USMC | DRB | 1999_Marine | MD99-01080
Original file (MD99-01080.rtf) Auto-classification: Denied


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

ex-Pvt, USMC
Docket No. MD99-01080

Applicant’s Request
The application for discharge review, received 990809, requested that the characterization of service on the discharge be changed to honorable. The applicant requested a personal appearance hearing before a Traveling Panel closest to Sykesville, MD. The applicant did not designate a representative on the DD Form 293. In the acknowledgement letter to the applicant, he was informed that the Naval Discharge Review Board (NDRB) first conducts a documentary review prior to any personal appearance hearing.

Decision

A documentary discharge review was conducted in Washington, D.C. on 000424. 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

 1. I received letters of recommendation. I also received awards and decorations.

2. I was so close to finishing my tour that it was unfair to give me a bad conduct discharge.

3. My record of Court-Martial convictions indicates only isolated or minor offenses.

4. Clemency is warranted because it is an injustice for me to continue to suffer the adverse consequences of a bad conduct discharge the rest of my life.

 Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
Copy of DD Form 214
Character Reference letter from H_ D. S_, Sr., D.D., St Paul Christian Church, Outreach Ministries dtd Jun 26, 1999
Character Reference/Letter of Employment from O_ P_, Dominion Computers Corp dtd July 26, 1999
Letter of Appreciation from CO, MCAR, New River dtd 24 Oct 1985
Meritorious Mast Certificate dtd 1 Dec 1985
Certificate of Award (Participation in 1985 Heritage invitational Tournament) Feb 23-24, 1985
Certificate of Award (Participation in 1985 Heritage invitational Tournament) Feb 28, 1-2 Mar 1986

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
         Inactive: USMCR(J)                830927 - 840828  COG

 Period of Service Under Review :
Date of Enlistment: 840829               Date of Discharge: 880219

 Length of Service (years, months, days):

         Active: 03 06 00 (Does not exclude lost/confinement time)
         Inactive: None

 Age at Entry: 18                          Years Contracted: 4

Education Level: 12                        AFQT: 34

 Highest Rank: PFC

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 3.2 (6)                       Conduct: 3.48 (6)

 Military Decorations: None

 Unit/Campaign/Service Awards: MM, LOA

 Days of Unauthorized Absence: 18

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 :

851203:  Special Court-Martial.
         Charge I: violation of UCMJ, Article 109 - Damage Vending Machine on 0230, 6MAY85.
         Charge II: violation of UCMJ, Article 121 - Steal coins on 0230, 6MAY85.
         Charge III: violation of UCMJ, Article 134 - Make, under lawful oath, false statement on 07JUN85.
         Finding: to Charge I - guilty; Charge II - guilty; Charge III - guilty.
         Sentence: To be confined for 120 days, forfeiture of $175.00 pay per month for 3 months, reduced to E-1.
         CA action 860107: Sentence approved and ordered.
        
870122:  Special Court-Martial.
         Charge I: violation of UCMJ, Article 86 - Unauthorized absence on 861208
         Charge II: violation of UCMJ, Article 121 (3 Specs)
         Specification 1: Steal US Currency on 860912 valued at $3.00
         Specification 2: Steal US Currency on 860912 valued at $290.00
         Specification 3: Steal US Currency on 860912 valued at $62.00
         Charge III: violation of UCMJ, Article 134 (6 Specs).
         Specification 1: Intent to defraud on 860912
         Specification 2: Intent to defraud on 860912
         Specification 3: Intent to defraud on 860915
         Specification 4: Intent to defraud between 860926 to 860929
         Specification 5: Intent to defraud between 860912 to 860930
         Specification 6: Intent to defraud between 860912 to 860930
         Findings: Charge I - withdrawn
 Charge II - Specs 1, 2, 3 - guilty.
Charge III - Specs 1, 2, 3, 4 - guilty; Spec 5 & 6 - withdrawn.
          Sentence: Confinement for 135 days, forfeiture of $400.00 pay per month for six months, reduction to E-1, and a bad conduct discharge.
         CA 980421: Sentence approved and ordered executed except for the BCD.
        
870122:  To confinement, Sentence of SPCM.

870514:  From confinement, to duty.

870619:  To appellate leave.

870916:  NC&PB denied clemency and restoration.

870918:  NMCCMR: Affirmed findings and sentence.

880219:  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 880219 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).

In response to the applicant’s issues 1 through 4, r elevant 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. (B, Part IV) The applicant's case was considered under the pertinent standards of equity to determine if any factors in this particular case merited clemency. The NDRB found the applicant’s service record devoid of any mitigating or extenuating factors sufficient to offset the seriousness of the offenses for which the discharge was awarded. No relief will be granted on the basis of these issues. The applicant is reminded that he remains eligible for a personal appearance hearing provided that an application is received within 15 years from the date of 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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