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USMC | DRB | 2001_Marine | MD01-00188
Original file (MD01-00188.rtf) Auto-classification: Denied


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

ex-PVT, USMC
Docket No. MD01-00188

Applicant’s Request
The application for discharge review, received 001129, requested that the characterization of service on the discharge be changed to general/under honorable conditions and the reason for the discharge be changed to medical discharge. 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 010601. After a thorough review of the records, 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/COURT-MARTIAL, authority: MARCORSEPMAN Par. 1105.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues (verbatim)

 1. I blow out my left knee while in the marine corps and stared a medical discharge and did not receive a disability percentage and can not go to work because I can not stay on my knee for long periods of time. And the training I had was for Dicale Macanic.

 Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
None

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: USMC              None
         Inactive: USMCR(J)                960928 - 961111  COG

 Period of Service Under Review :
Date of Enlistment: 961112               Date of Discharge: 990624

 Length of Service (years, months, days):

         Active: 02 03 27
         Inactive: None

 Age at Entry: 21                          Years Contracted: 4

Education Level: 12                        AFQT: 31

 Highest Rank: PFC

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 4.4 (2)                       Conduct: 4.4 (2)

 Military Decorations: None

 Unit/Campaign/Service Awards: None

Days of Unauthorized Absence: None

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

BAD CONDUCT DISCHARGE/COURT-MARTIAL, authority: MARCORSEPMAN Par. 1105.

 Chronological Listing of Significant Service Events :

970701:  Special Court-Martial.
         Charge I: violation of the UCMJ, Article 123: Did onboard Marine Corp Base, Camp Lejeune, North Carolina, between or about 970321 and on or about 970416, 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, certain checks upon the Fort Sill National Bank, located in Fort Sill, Oklahoma, in the amount of $2000.00, then knowing that he, the maker thereof, did not or would not have sufficient funds in or credit with such bank for the payment of said checks in full upon their presentment.
         Charge II: violation of the UCMJ, Article 134: Did onboard Marine Corp Base, Camp Lejeune, North Carolina, between or about 970321 and on or about 970404, make and utter Morale, Welfare, and Recreation Activity, certain checks upon the Fort Sill National Bank, located in Fort Sill, Oklahoma, in the amount of $1315.24, for the purpose of obtaining lawful currency or things of value and did thereafter dishonorably fail to place or maintain sufficient funds in the Fort Sill National Bank for payment of such checks in full upon their presentment for payment.
         Findings: to Charge I and specification thereunder, guilty. To Charge II and specification thereunder, guilty.
         Sentence: Conf for 130 days, forfeiture of $600.00 pay per month for 5 months, reduction to E-1, and a bad conduct discharge.
         CA 971009: Sentence approved and except for the BCD ordered executed. BCD and all confinement in excess of 90 days suspended for 12 months from the date of trial and all adjudged forfeiture suspended for 12 months from the date of CA's action.

971103:  Counseled for deficiencies in performance and conduct. [Concerning your Bad Conduct Discharge awarded at a Special Court-Martial on 970701. This Bad Conduct Discharge has been suspended for a period of 12 months from the date of trial. In addition to your BCD being suspended: 65 days of confinement were suspended for 12 months from the date of trial, unless sooner vacated or remitted effective this date; and forfeiture of $600.00 pay per month for 5 months was suspended for 12 months from the date of the Convening Authorities action 971103, unless sooner vacated or remitted effective this date]. Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

980109:  Counseled for deficiencies in performance and conduct. [Your violation of Marine Corps regulations by your inexcusable failure to properly manage your financial responsibilities by issues a check for $9.94 971017 D___'s Pizza that has been dishonored by the bank for insufficient funds. It is noted that for the same violation you were sentenced to a Bad Conduct Discharge at a Special Court-Martial on 970701 which was suspended for a period of 12 months. Specific reason for counseling.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

980331:  NMCCMR: Affirmed findings and sentence.

980626:  Commanding Officer, 7 TH Communication Battalion vacated suspension of Special Court-Martial sentence including a Bad Conduct Discharge due to continued misconduct including violation of UCMJ Article 121 for wrongfully appropriating a black Huffy bicycle and stealing $30.00 and violation of UCMJ Article 134 for communicating a threat.

980803:  Applicant waived clemency review [Extracted from NC&PB computer system].

981009:  To appellate leave.

990624:  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 990624 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, facts, and circumstances unique to this case, the Board found that the discharge was proper and equitable (D and E).

In response to the applicant’s issue, 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. 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 is therefore denied .

 The following is provided for the applicant’s edification. The NDRB is authorized to consider post-service factors in the recharacterization of a discharge (D). 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. 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 COURT-MARTIAL , of the Marine Corps Separation and Retirement Manual, (MCO P1900.16E), effective 950818 until present.

B. 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.

C. 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.

D. 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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