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USMC | DRB | 2000_Marine | MD00-00888
Original file (MD00-00888.rtf) Auto-classification: Denied


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


ex-PVT, USMC
Docket No. MD00-00888

Applicant’s Request
The application for discharge review, received 000705, requested that the characterization of service on the discharge be changed to honorable and the reason for the discharge be changed to social hardship of emotional circumstances & death in family. 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 020101. 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 am hereby saying that my latter discharge from service could be more favorable then is; due to having accomplishment 4 yrs of service including obtaining an honorable discharge for such time - and that my latter discharge shows incongruity of character while in service and now the present, the latter discharge not compatible to my input in service; and that an honorable update of discharge could and will change my naturalization status to country, as also reciprocation of my prior service.
2. SEE ATTACHED LETTER DATED 000628.

 Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
Copies of DD Form 214 (2)
Letter from Applicant (3pgs)
 Copy of Honorable Discharge Certificate
 Copy of Certificate of Good Conduct
Copy of Work Study Time Record from DVA
 Copy of Enrollment Certification from DVA
 Copy of Montgomery GI Bill program letter
Copy of Poem Publication Letter
 Copy of Newspaper Writing
 Newspaper
Employment Reference Letter from DVA

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: USMC              850826 - 890117  HON
         Inactive: USMCR(J)                850725 - 850825  COG
Period of Service Under Review :
Date of Enlistment: 890119               Date of Discharge: 950329

 Length of Service (years, months, days):

         Active: 02 07 08
         Inactive: None

 Age at Entry: 23                          Years Contracted: 4

Education Level: 12                        AFQT: 34

 Highest Rank: LCpl
Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 3.8 (Extracted from SJA's ltr)      Conduct: 3.3 (Extracted from SJA's ltr)
Military Decorations: None

 Unit/Campaign/Service Awards: SSDRw2*, 9MM Pistol Marksmanship Badge, GCM, Rifle Sharpshooter Badge

Days of Unauthorized Absence: 1058

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 :

890118:  Reenlisted at 2DBN 2DMAR 2MARDIV FMF CAMP LEJEUNE, NC for 4 years.
891116:  NJP for violation of UCMJ, Article 134: Uttered worthless check to National Bank of Fort Sam Houston for a total amount of $275.00.
 Awarded forfeiture of $209.00 per month for 1 month (suspended for 1 months), restriction and
extra duties for 14 days (suspended for 3 months). Not appealed.
900317:  NJP for violation of UCMJ, Article 86: UA from "G" Co 2dBn 5thMar from 0700 900220 to 0700 900225 [5days], violation of UCMJ Article 86: UA from "G" Co 2dBn 5thMar from 0700 to 0735 on 900306, violation of UCMJ Article 134: Between 890714 and 890802 wrote twenty (20) worthless checks totalling $772.07.
         Award: Forfeiture of $405.00 per month for 2 months (suspended for 6 months), extra duty for 60 days, reduction to E-2. No indication of appeal in the record.
930526:  Pre-trial confinement.
        
930723:  Special Court-Martial.
          Charge I: violation of the UCMJ, Article 86 (3 Specifications):
         Specification 1: On 900430, without authority, absent himself from his unit until apprehended 910111; Specification 2: On 910130, without authority, absent himself from his unit until apprehended 910910; Specification 3: On 910916, without authority, absent himself from his unit until apprehended 930526.
          Findings: to Charge I and specifications 1, 2 and 3 thereunder, guilty.
         Sentence: Confinement for 5 months, forfeiture of $400.00 pay per month for 5 months, reduction to E-1, and a bad conduct discharge.
         CA 940307: Sentence approved and ordered executed except for the BCD, but execution of that portion of the sentence adjudging confinement in excess of 90 days is suspended for a period of six months from the date of this action, at which time unless sooner vacated, the suspended confinement will be remitted without further action.

930820:  To appellate leave.

940505:  NC&PB denied clemency.

941230:  NMCCMR: Affirmed findings and sentence.

 950329:  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 950329 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 the applicant’s issue, the Board finds that while the applicant completed one period of enlistment honorably, the nature of the discharge in question is based solely on the conduct of the member during that period of enlistment beginning on 890118. Accordingly, relief on this basis is denied. The Board also has no authority to change either reenlistment codes or naturalization status.
Relevant 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. Relief denied.

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 P1900.16D), 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 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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