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USMC | DRB | 2001_Marine | MD01-00636
Original file (MD01-00636.rtf) Auto-classification: Denied


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

ex-PVT, USMC
Docket No. MD01-00636

Applicant’s Request
The application for discharge review, received 000406, requested that the characterization of service on the discharge be changed to honorable and the reason for the discharge be changed to Misc/general Reasons or Sec. Authority. The applicant requested a documentary record discharge review. The applicant listed civilian counsel as his representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 010928. 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/COURT-MARTIAL, authority: MARCORSEPMAN Par. 1105.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

 1. My Bad Conduct Discharge is inequitable in view of my past good military service and my full cooperation with the Military Justice System, to include and early admission of wrong doing and pleas of guilty.

2. My discharge was inequitable because it was based on one isolated incident in 48 months of service with no other adverse action.

3. My discharge is inequitable because although I was not entitled to per diem as my residence was within 50 miles of Camp Pendleton, my off base residence in Oceanside, CA was actually 57 miles away from my place of duty onboard Camp Pendleton.

4. My discharge is inequitable because I was not entitled to any allowances and could not financially afford to live off base while only receiving base pay. I was unable to give up my off base residence as I could not, pursuant to base regulation, store my weapons collection on base and owned substantial household goods and effects. The amount of pay and allowances I was to receive was unknown to me until after I had legally committed to returning to active duty.

5. My Bad Conduct Discharge is inequitable because of my exemplary post service conduct.

 Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
Statement from Applicant (2pgs)
Copy of DD Form 214
Copy of Results of Trial
Copy of Charge Sheets (2pgs)
Copy of Stipulation of Facts (3pgs)
Copy of Fullerton College Police Academy Diploma
Copy of Grossmont College Certificate of Completion
Copy of Reference Letter from Special Agent W J____
Copy of Letter of Appreciation
Character/Employment Reference Letters (8)
Copy of DD Form 214
Copies of DD Form 215 (3)

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
 Inactive: USMCR(J)                881116 - 881212  COG
Period of Service Under Review :
Date of Enlistment: 881213               Date of Discharge: 961211

 Length of Service (years, months, days):

         Active: 04 10 25 (Excludes loss time, confinement & appellate leave)
         Inactive: 01 04 01

 Age at Entry: 21                          Years Contracted: 4 (24 months extension)

 Education Level: 12                        AFQT: 45

 Highest Rank: Cpl

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 4.4 (1)                       Conduct: 4.4 (1)

 Military Decorations: None

 Unit/Campaign/Service Awards: NDSM, LOA, Rifle Sharpshooter Badge, SSDRw1*, GCM

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 :

881212:  Enlisted in the Marine Corps for a term of four years.

921213:  Extended enlistment for one month.

930113:  Extended enlistment for one month.

 930212:  Released from active duty and transferred to the Marine Corps Reserve until 15 Nov 1996 to complete military service obligation. Received a characterization of service as "Honorable" having completed 4 years and two months of active duty.

940613:  Commenced ADSW (Active Duty for Special Works).

 941024:  Special Court-Martial.
         Charge I: violation of the UCMJ, Article 80: Did btwn 940812 and 940910, attempt to steal U.S. currency, of a value of about $863.00, property of the U.S. Government; Charge II: violation of the UCMJ, Article 81: Did on 940614, conspire with PFC D.L. C____, to commit and offense under the UCMJ, to wit: a false official statement, and in order to effect the object of the conspiracy, did sign the rental agreement; Charge III: violation of the UCMJ, Article 107: Did on 940614 with intent to deceive make to SSgt B____, an official statement, to wit: statements about his rental agreement, then known to be false; Charge IV: violation of the UCMJ, Article 121: Did btwn 940613 and 940910, steal U.S. currency, of a value of about $1031.00, the property of the U.S. Government; Charge V: violation of the UCMJ, Article 132 (3): Did between 940613 and 940910, make and use a certain paper, to wit: a rental agreement, which contained a statement that he was renting an apartment for $100.00 per month, which statement was false and fraudulent.
         Findings: to Charge I and specification thereunder, guilty. To Charge II and specification thereunder, guilty. To Charge III and specification thereunder, guilty. To Charge IV and specification thereunder. To Charge V and specification thereunder, guilty.
         Sentence: Confinement for 6 months, reduction to E-1, and a bad conduct discharge. On defense counsel's motion, the military judge found Charge III and V multiplicious for sentencing with Charge IV.
         CA 950323: Sentence approved and ordered executed except for the BCD, but that portion of the sentence to confinement in excess of 75 days is suspended for a period of 12 months from the date of this action, at which time, unless sooner vacated, the suspended confinement will be remitted without further action.
        
941024:  To confinement, Sentence of SPCM.

941223:  From confinement, to duty.

950426:  To appellate leave.

960229:  NMCCMA: Affirmed findings and sentence.

961211:  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 961211 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).

 Issues 1-4. In response to the applicant’s issues, 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 (C, 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.

Issue 5. The applicant’s discharge characterization accurately reflects his service to his country. The discharge was proper and equitable. Normally, to permit relief, an error or injustice must have existed during the period of enlistment in question. No such error or injustice occurred during the applicant’s enlistment. Additionally, 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 civilian life, subsequent to leaving the service. However, the NDRB is authorized to consider outstanding post-service factors in the recharacterization of a discharge, 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. Verifiable proof of any post-service accomplishments must be provided in order for the applicant to claim post-service conduct and behavior as a reason to upgrade a less than Honorable discharge. Evidence of continuing educational pursuits, an employment record, documentation of community service, certification of non-involvement with civil authorities and proof of his not using drugs, are examples of verifiable documents that should have been provided to receive consideration for clemency, based on post-service conduct. The applicant did not provide sufficient documentation to warrant an upgrade to his discharge. He is reminded that he remains eligible for a personal appearance hearing, provided an application is received, at the NDRB, within 15 years from the date of his discharge. The applicant can provide additional documentation to support any claims of post-service accomplishments at that time. Legal representation at a personal appearance hearing is highly recommended but not required. Relief denied.

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. 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 80, attempted larceny; Article 81, conspiracy; Article 107, false official statement; Article 121, larceny; and Article 132, false claim.
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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