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USMC | DRB | 2000_Marine | MD00-00704
Original file (MD00-00704.rtf) Auto-classification: Denied


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

ex-Pvt, USMC
Docket No. MD00-00704

Applicant’s Request
The application for discharge review, received 000509, 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 designate a representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 001116. 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 do understand now that I made a lot of mistakes in my youth and believe the results of my bad conduct discharge to be the gravest. I have tried very hard to turn my life around for myself, but mostly for my family. I implore the board to please reconsider my discharge on these accounts.

 Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
Applicant's daughter's birth certificate
Applicant's son's birth certificate
Applicant's Employee personal data sheet
Applicant's Dependent update sheet
Applicant's Truth-in-Lending Disclosure Statement
Applicant's Country Wide Monthly Home Loan Statement
Copy of DD Form 214

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
         Inactive: USMCR(J)                890619 - 900617  COG

 Period of Service Under Review :
Date of Enlistment: 900618               Date of Discharge: 940405

 Length of Service (years, months, days):

         Active: 03 09 17 (Doesn't exclude lost time, confinement or appellate leave.)
         Inactive: None

 Age at Entry: 18                          Years Contracted: 4

Education Level: 12                        AFQT: 45

 Highest Rank: LCpl

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 4.0 (4)              Conduct: 3.0 (5)

 Military Decorations: None

 Unit/Campaign/Service Awards: NDSM, SWASM, CAR

Days of Unauthorized Absence: 41

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 :

910728:  NJP for violation of UCMJ, Article 121: on or about 910716 at Rm 215, Bldg HP308, CLNC commit larceny by stealing the Military Identification Card of LCpl P_; violation of UCMJ, Article 108: on or about 910716 at Rm 214, Bldg HP 308, CLNC wrongfully mutilate the Military Identification Card of LCpl _.
 Awarded forfeiture of $150.00 per month for 1 month. Not appealed.
910816:  Unauthorized absence since 0701.

 910916:  Applicant declared a deserter on 910916 having been an unauthorized absentee since 0701, 910816.

910926:  Applicant apprehended by civil authorities on 910926 (0230) at Austintown Ohio Police Department and held at Mahoning County Jail, Youngstown, OH. Returned to military control 910926 (2205).

910927:  To pre-trial confinement.

911106:  Special Court-Martial.
         Charge I: violation of the UCMJ, Article 86: did, at Camp Lejeune, NC, on or about 910816, w/o authority, absent himself from his unit, and did remain so absent until he was apprehended on or about 910926.
         Findings: to Charge I and specification 1 thereunder, guilty.
Sentence: Confinement for 45 days, forfeiture of $500.00 per month for 2 months, reduction to E-1, and a bad conduct discharge.
          CA 911230: Sentence approved and ordered executed except for the BCD.
        
911106:  To confinement, Sentence of SPCM.

911107:  From confinement, to duty.

911107:  Applicant waived clemency review by the Naval Clemency and Parole Board.

920427:  To appellate leave.

920630:  NMCCMR: Affirmed findings and sentence.

921130:  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 940405 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).

 Relevant and material facts stated in a court-martial specification are presumed by the NDRB to be established facts. With respect to a discharge or dismissal adjudged by a court-martial case tried under the Uniform Code of Military Justice, the action of the NDRB extends only to a change in the discharge or dismissal for purpose of clemency. (B, art IV) The applicant has provided no evidence to warrant consideration of clemency (issue1).

The following is provided for the applicant’s edification. The NDRB is authorized to grant clemency based on post-service factors in the recharacterization of a discharge (E). The applicant must be aware that 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 the civilian life subsequent to leaving the service. Outstanding post-service conduct, to the extent that such matters provide a basis for a more thorough understanding of the applicant’s performance and conduct during the period of service under review, may be considered by the NDRB (must be documented). The applicant is reminded that he is eligible for a personal appearance hearing provided the application is received within 15 years from the date of discharge. Representation at personal appearance hearing is highly recommended.



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 view DoD Directive 1332.28 and other Decisional Documents by going online at “ afls14.jag.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:

                  Naval Council of Personnel Boards
                  Attn: Naval Discharge Review Board
                  720 Kennon Street SE Rm 309
                  Washington Navy Yard DC 20374-5023      

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