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USMC | DRB | 2000_Marine | MD00-00798
Original file (MD00-00798.rtf) Auto-classification: Denied


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


ex-PVT, USMC
Docket No. MD00-00798

Applicant’s Request
The application for discharge review, received 000607, requested that the characterization of service on the discharge be changed to honorable and the reason for the discharge be changed to honorable & retired w/pay as E-7. The applicant requested a documentary record discharge review. The applicant listed AMERICAN LEGION as his representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 010116. 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. (EQUITY ISSUE) Pursuant to 10 USC 874 (b) (UCMJ, Article 74) and in accordance with SECNAVINST 5420.174C, enclosure (1), paragraphs 2.24 and 9.3, this former member requests the Board's clemency relief with up-grade of his characterization of service to under honorable conditions on the basis of his post-service conduct.
Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
Copy of DD Form 214

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: USMC              701112 - 761006  HON
                   USMC             761007 - 781127  HON
                   USMC             781128 - 811222  HON
                  USMC             811223 - 850606  HON
                   USMC             850607 - 910606  HON
          Inactive: USMCR(J)                701102 - 701111  COG

 Period of Service Under Review :
Date of Enlistment: 910607               Date of Discharge: 941205

 Length of Service (years, months, days):
         Active: 03 05 28
          Inactive: None
Age at Entry: 38                          Years Contracted: 2

Education Level: 12                        AFQT: NMR
Highest Rank: GYSGT

 Final Enlisted Performance Evaluation Averages: All enlisted performance reports were available to the Board for review.
Military Decorations: None

 Unit/Campaign/Service Awards: Rifle Sharpshooter Badge, Pistol Expert Badge (3 rd ), NDSMw1*, MUC, OMCRM, AFEM, GCM(4 TH ), NASR, SSDR(1*), LOA(3), LOC

Days of Unauthorized Absence: None

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 :

910607:  Reenlisted at HQ BTRY 10 TH MAR 2D MARDIV FMF CAMP LEJEUNE NC for 2 years.
        
920115:  Special Court-Martial.
          Charge I: violation of the UCMJ, Article 121: Steal a Bear Compound Bow with accessories, of a value of about $119.00 during November 1990.
          Findings: to Charge I and specification 1 thereunder, guilty.
         Sentence: Reduction to E-1, and a bad conduct discharge.
          CA 920702: Sentence approved and ordered executed except for the BCD.
        
930823:  NMCCMR: Affirmed findings and sentence.

930909:  NC&PB denied clemency and restoration.

940624:  COMA: The decision of NMCCMR affirmed.

941205:  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 941205 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’s representative submitted the following as issue: (EQUITY ISSUE) His post service-conduct warrants and up-grade. The NDRB is authorized to consider post-service factors in the recharacterization of a discharge (B, Part IV). However, 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. Normally, to permit relief, an error or injustice must have been found to have existed during the period of enlistment in question. 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, is considered. The applicant provided no documentation of his post-service. The applicant should produce evidence of continuing educational pursuits, a verifiable employment record, documentation of community service, certification of non-involvement with civil authorities in order for consideration for clemency based on post-service conduct. At this time the applicant has not provided any documentation of good character and conduct. Therefore no relief will be granted. He is encouraged to continue with his pursuits and is reminded that he is eligible for a personal appearance hearing provided the application is received within 15 years from the date of discharge. Relief denied.

The NDRB has no jurisdiction over reinstatement or retirement benefits. The Board of Corrections for Naval Review has cognizance over these issues.

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      
                  Washington, D.C. 20374-5023     


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