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USMC | DRB | 2000_Marine | MD00-00953
Original file (MD00-00953.rtf) Auto-classification: Denied


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



ex-PVT, USMC
Docket No. MD00-00953

Applicant’s Request
The application for discharge review, received 000728, requested that the characterization of service on the discharge be changed to honorable or general/under honorable conditions. 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 010215. 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), paragraph 2.24 and 9.3, this former member requests the Board's clemency relief with upgrade 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              760630 - 800130  HON
                   USMC             800131 - 830207  HON
         Inactive: USMCR(J)                751219 – 760629  COG

 Period of Service Under Review :
Date of Enlistment: 830208               Date of Discharge: 880728

 Length of Service (years, months, days):
         Active: 05 05 21
          Inactive: None
Age at Entry: 17                          Years Contracted: 5

Education Level: 12                        AFQT: 55
Highest Rank: Sgt

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

 Unit/Campaign/Service Awards: GCMw2*, SSDRw1*, NUC, Meritorious Mast

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 :

830208:  Reenlisted at H&Sco 3dLanSptBn 3DFSSG FMFPac FPO SFRAN for 5 years.

830304:  Counseled for deficiencies in performance and conduct. [Poor judgement used in connection with his reporting and actions when involved in a motor vehicle accident] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
840925:  Counseled for deficiencies in performance and conduct. [Concerning conviction of driving while intoxicated] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
861205:  Special Court-Martial.
         Charge I: violation of the UCMJ, Article 121: Larceny of $1300.00 on 860512.
          Charge II: violation of the UCMJ, Article 134: Unlawful entry on 860512.
          Findings: to Charge I and specification thereunder, guilty. To Charge II and specification thereunder, guilty.
         Sentence: Confinement for 4 months, forfeiture of $200.00 pay per month for 2 months, reduction to E-1, and a bad conduct discharge.
          CA 870303: Only so much of the sentence as provides for a bad conduct discharge, forfeiture of $200.00 pay per month for two months, and reduction to pay grade E-1, is approved, and except for the part of the sentence extending to a bad conduct discharge will be executed.
        
861222:  Applicant waived clemency review [Extracted from SSPCMO].

870202:  To appellate leave.

870612:  NMCCMR: Affirmed findings and sentence.

880705:  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 880728 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).
The following is provided for the applicant’s edification. 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)

In the applicant’s issue, the Board found that while he requests clemency on the basis of his post-service conduct, there is no documentation to provide the Board insight to consider the request. Therefore, no relief can be granted on this basis.
The NDRB is authorized to consider post-service factors in the recharacterization of a discharge (D). 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 be found to have existed during the period of enlistment in question. No such error or injustice is evident in the applicant’s service record.
In determining whether a case merits a change based on post-service conduct, the NDRB considers the length of time since discharge, the applicant's record of community service, employment, conduct, educational achievements, and family relationships. The applicant provided only a copy of his DD-214. The applicant should have produced evidence of continuing educational pursuits, a verifiable employment record, documentation of community service, family stability, certification of non-involvement with civil authorities and proof of his not abusing drugs and alcohol in order for consideration for clemency based on post-service conduct. At this time the applicant has not provided sufficient documentation of good character and conduct. Therefore no relief will be granted. 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 121, larceny and Article 134, unlawful entry.
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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