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USMC | DRB | 2001_Marine | MD01-00158
Original file (MD01-00158.rtf) Auto-classification: Denied


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



ex-LCPL, USMC
Docket No. MD01-00158

Applicant’s Request
The application for discharge review, received 001121, requested that the characterization of service on the discharge be changed to Honorable. The applicant requested a personal appearance hearing discharge review before the Board in the Washington National Capital Region. The applicant listed Veterans of Foreign Wars as his representative on the DD Form 293.

Decision

A personal appearance hearing discharge review was conducted in Washington, D.C. on 010924. 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 three to two that the character of the discharge shall not change. The discharge shall remain: UNDER OTHER THAN HONORABLE CONDITIONS/VOL DIS (IN LIEU OF TRIAL BY COURT MARTIAL), authority: MARCORSEPMAN Par. 6419.


PART I - APPLICANT’S ISSUES AND DOCUMENTATION


Issues (verbatim)
1.       As previously submitted.
2. We contend the discharge was improper because there was insufficient proof in the charges and specifications.

 Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
Letter from Applicant
 Copy of Charge Sheet (5pgs)
Copies of Fitness Reports (7pgs)
Copy of Master Brief Sheet
Copy of Navy Achievement Medal Certificate
Copy of Navy Achievement Medal Citation Letter
Copy of Certificate of Commendation
Copies of Meritorious Mast Certificates (2)
Copies of Honorable Discharge Certificates (2)
Copy of Certificate of Good Conduct
Letter of Recommendation from GySgt T___
Employment Reference Letter
Reference Letter from Marine Corps Community Services (MCCS)
Copy of Dishonored Check Display Statement
Copy of Art 123a Information
Copy of DD Form 214

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: USMC              881124 - 920728  HON
                  USMC             841207 - 881123  HON
         Inactive: USMCR(J)                840223 - 841206  COG

 Period of Service Under Review :
Date of Enlistment: 920729               Date of Discharge: 941007

 Length of Service (years, months, days):

          Active: 02 02 09
          Inactive: None

 Age at Entry: 25                          Years Contracted: 4

Education Level: 12                        AFQT: 54

 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: Letters of Appreciation (6), Meritorious Mast (2), SWASM (3*), SSDR (3*), KLM, NDSM, NUC (1*), Certificate of Commendation, GCM (1*)

 Days of Unauthorized Absence: None

Character, Narrative Reason, and Authority of Discharge (at time of issuance):

UNDER OTHER THAN HONORABLE CONDITIONS/VOL DIS (IN LIEU OF TRIAL BY COURT MARTIAL), authority: MARCORSEPMAN Par. 6419.

 Chronological Listing of Significant Service Events :

920729:  Reenlisted at MWSS-27, MWSG-27, 2DMAW, FMFLANT, MCAS Cherry Point, NC for 4 years.

940623:  Counseled for deficiencies in performance and conduct. [Your check writing privileges have been revoked throughout the Morale, Welfare and Recreation System, worldwide, and will remain revoked for a period of six (6) months from the first of the month following full restitution] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

940729:  Charges preferred to SPCM. Charge I, violation of the UCMJ, Article 123a (7 Specs): Specification 1 : In that Sgt K___, U.S. Marine Corps, on active duty, Combat Service Support Detachment 21, 2d Force Service Support Group, U.S. Marine Forces, Atlantic, Marine Corps Air Station, Cherry Point, North Carolina, did on board Marine Corps Air Station, Cherry Point, North Carolina, on or about 940126, with intent to defraud and for the procurement of lawful currency or a thing of value, wrongfully and unlawfully make and utter to Morale, Welfare and Recreation Activity 0220, Marine Corps Air Station Cherry Point, North Carolina, a certain check upon the Navy Federal Credit Union in words and figure as follows, to wit: Check number 0434, dated 940126, paid to the order of MCX 0220, in the amount of $100.00, drawn on account number 0345803704, Navy Federal Credit Union, and signed by the said Sgt K___, then knowing that he, Sgt K___, the maker thereof, did not or would not have sufficient funds in or credit with such credit union for the payment of the said check in full upon its presentment. Specification 2 : In that Sgt K___, U.S. Marine Corps, on active duty, Combat Service Support Detachment 21, 2d Force Service Support Group, U.S. Marine Forces, Atlantic, Marine Corps Air Station, Cherry Point, North Carolina, did, at the Navy Exchange, Kings Bay, Georgia, on or about 940405, with intent to defraud and for the procurement of lawful currency or a thing of value, wrongfully and unlawfully make and utter to Navy Exchange, Kings Bay, Georgia, a certain check upon the Navy Federal Credit Union in words and figure as follows, to wit: Check number 0105, dated 940405, paid to the order of Navy Exchange, Kings Bay, Georgia, in the amount of $150.00, drawn on account number 108010994503, Navy Federal Credit Union, and signed by the said Sgt K___, then knowing that he, Sgt K___, the maker thereof, did not or would not have sufficient funds in or credit with such credit union for the payment of the said check in full upon its presentment. Specification 3 : In that Sgt K___, U.S. Marine Corps, on active duty, Combat Service Support Detachment 21, 2d Force Service Support Group, U.S. Marine Forces, Atlantic, Marine Corps Air Station, Cherry Point, North Carolina, did on board Marine Corps Air Station, Cherry Point, North Carolina, on or about 940606, with intent to defraud and for the procurement of lawful currency or a thing of value, wrongfully and unlawfully make and utter to Morale, Welfare and Recreation Activity 0220, Marine Corps Air Station Cherry Point, North Carolina, a certain check upon the Navy Federal Credit Union in words and figure as follows, to wit: Check number 0146, dated 940607, paid to the order of MCX 0220, in the amount of $200.00, drawn on account number 108010994503, Navy Federal Credit Union, and signed by the said Sgt K___, then knowing that he, Sgt K___, the maker thereof, did not or would not have sufficient funds in or credit with such credit union for the payment of the said check in full upon its presentment. Specification 4 : In that Sgt K___, U.S. Marine Corps, on active duty, Combat Service Support Detachment 21, 2d Force Service Support Group, U.S. Marine Forces, Atlantic, Marine Corps Air Station, Cherry Point, North Carolina, did on board Marine Corps Air Station, Cherry Point, North Carolina, on or about 940612, with intent to defraud and for the procurement of lawful currency or a thing of value, wrongfully and unlawfully make and utter to Morale, Welfare and Recreation Activity 0220, Marine Corps Air Station Cherry Point, North Carolina, a certain check upon the Navy Federal Credit Union in words and figure as follows, to wit: Check number 0149, dated 940612, paid to the order of MCX 0220, in the amount of $200.00, drawn on account number 108010994503, Navy Federal Credit Union, and signed by the said Sgt K___, then knowing that he, Sgt K___, the maker thereof, did not or would not have sufficient funds in or credit with such credit union for the payment of the said check in full upon its presentment. Specification 5 : In that Sgt K___, U.S. Marine Corps, on active duty, Combat Service Support Detachment 21, 2d Force Service Support Group, U.S. Marine Forces, Atlantic, Marine Corps Air Station, Cherry Point, North Carolina, did on board Marine Corps Air Station, Cherry Point, North Carolina, on or between 940612 and 940701, with intent to defraud and for the procurement of lawful currency or a thing of value, wrongfully and unlawfully make and utter to Morale, Welfare and Recreation Activity 0220, Marine Corps Air Station Cherry Point, North Carolina, a certain check upon the Navy Federal Credit Union in words and figure as follows, to wit: Check number 0151, paid to the order of MCX 0220, in the amount of $200.00, drawn on account number 108010994503, Navy Federal Credit Union, and signed by the said Sgt K___, then knowing that he, Sgt K___, the maker thereof, did not or would not have sufficient funds in or credit with such credit union for the payment of the said check in full upon its presentment. Specification 6 : In that Sgt K___, U.S. Marine Corps, on active duty, Combat Service Support Detachment 21, 2d Force Service Support Group, U.S. Marine Forces, Atlantic, Marine Corps Air Station, Cherry Point, North Carolina, did on board Marine Corps Air Station, Cherry Point, North Carolina, on or between 940612 and 940706, with intent to defraud and for the procurement of lawful currency or a thing of value, wrongfully and unlawfully make and utter to Morale, Welfare and Recreation Activity 0220, Marine Corps Air Station Cherry Point, North Carolina, a certain check upon the Navy Federal Credit Union in words and figure as follows, to wit: Check number 0153, paid to the order of MCX 0220, in the amount of $200.00, drawn on account number 108010994503, Navy Federal Credit Union, and signed by the said Sgt K___, then knowing that he, Sgt K___, the maker thereof, did not or would not have sufficient funds in or credit with such credit union for the payment of the said check in full upon its presentment. Specification 7 : In that Sgt K___, U.S. Marine Corps, on active duty, Combat Service Support Detachment 21, 2d Force Service Support Group, U.S. Marine Forces, Atlantic, Marine Corps Air Station, Cherry Point, North Carolina, did on board Marine Corps Air Station, Cherry Point, North Carolina, on or between 940701 and 940706, with intent to defraud and for the procurement of lawful currency or a thing of value, wrongfully and unlawfully make and utter to Morale, Welfare and Recreation Activity 0220, Marine Corps Air Station Cherry Point, North Carolina, a certain check upon the Navy Federal Credit Union in words and figure as follows, to wit: Check number 0155, paid to the order of MCX 0220, in the amount of $200.00, drawn on account number 108010994503, Navy Federal Credit Union, and signed by the said Sgt K___, then knowing that he, Sgt K___, the maker thereof, did not or would not have sufficient funds in or credit with such credit union for the payment of the said check in full upon its presentment.

940830:  Applicant, having consulted with counsel certified under UCMJ Art 27b, requested discharge for the good of the service to escape trial by court- martial. In the request the applicant noted that his counsel had fully explained the elements of the offenses for which he was charged and that he understood the elements of the offenses. He further certified a complete understanding of the negative consequences of his actions and that characterization of service would be under other honorable conditions. The applicant admitted guilt to the following violations of the UCMJ: Article 123: (7 Specifications), Making, drawing, or uttering check, draft, or order without sufficient funds.

940830:  Applicant's counsel submitted a letter to the commanding general requesting that the applicant's request for separation in lieu of trial by courts-martial be approved and that characterization of service be under Honorable conditions (General). The letter highlighted the positive aspects of the applicant's prior and present service.

940923:  GCMCA [Commanding General] determined that applicant had no potential for further service, that separation in lieu of trial by court-martial was in the best interest of the service, and directed discharge under Other Than Honorable conditions by reason of conduct triable by courts-martial.
Discharge package incomplete


 951106:  NDRB documentary record review Docket Number MD95-01455 conducted. Determination: discharge proper and equitable; relief not warranted.

PART III – RATIONALE FOR DECISION AND PERTINENT
REGULATION/LAW

Discussion

The applicant was discharged on 941007 under Other Than Honorable conditions in lieu of trial by court-martial (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 applicant’s issue’s 1 and 2, per SECNAVINST 5420.174C, the relevant and material facts stated in a court-martial specification are presumed by the Board to be established facts. While the applicant states that the documented checks were paid off before charges were made, the fact remains that the applicant wrote the checks with full knowledge that he did not have sufficient funds available at the time for the checks to be processed. In addition, even though the applicant may feel that an other than honorable discharge is too “extreme”, he is reminded that he requested this characterization of discharge in order to avoid trial by court-martial. The applicant could have been awarded a bad conduct discharge for violation of UCMJ Article 123a (insufficient funds, intent to deceive). Therefore, the Board finds that relief is not warranted.

This decision exhausts the applicant’s opportunity for review by the NDRB. The applicant remains eligible to appeal for upgrade to the Board of Correction of Naval Records.

 Pertinent Regulation/Law (at time of discharge)
A. Paragraph 6419, SEPARATION IN LIEU OF TRIAL BY COURT-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 123a, for wrongfully and unlawfully uttering checks with insufficient funds.
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 “ afls10.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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