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USMC | DRB | 2001_Marine | MD01-00876
Original file (MD01-00876.rtf) Auto-classification: Denied


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

ex-Pvt, USMC
Docket No. MD01-00876

Applicant’s Request
The application for discharge review, received 010619, requested that the characterization of service on the discharge be changed to honorable. 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 020320. 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: UNDER OTHER THAN HONORABLE CONDITIONS/Conduct triable by courts-martial (request for discharge for the good of the service), authority: MARCORSEPMAN Par. 6419.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION


 Issues

Prior to the documentary discharge review, the applicant introduced no issues as block 8 on the DD Form 293 is blank.
Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
Copy of DD Form 214
Letter from Community Corrections Officer III dated March 14, 2001
Character letter from applicant's pastor, undated
E-mail from applicant's sister dated July 20, 2000 and a letter, undated
Letter from applicant's wife
E-mail from applicant's mother dated July 21, 2000
Letter from applicant's sister, undated

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
         Inactive: USMCR(J)                910429 - 911111  COG

 Period of Service Under Review :
Date of Enlistment: 911112               Date of Discharge: 940331

 Length of Service (years, months, days):

         Active: 02 04 20
         Inactive: None

 Age at Entry: 17                          Years Contracted: 5

 Education Level: 12                        AFQT: 80

 Highest Rank: PFC

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 4.6 (6)                       Conduct: 4.0 (6)

 Military Decorations: Rifle Expert Badge

 Unit/Campaign/Service Awards: NDSM, SSDR

 Days of Unauthorized Absence: None

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

UNDER OTHER THAN HONORABLE CONDITIONS/Conduct triable by courts-martial (request for discharge for the good of the service), authority: MARCORSEPMAN Par. 6419.

 Chronological Listing of Significant Service Events :

920723:  NJP for violation of UCMJ, Article 121:
 Specification: Took a money order belonging to Lance Corporal and cashed the same on 18Jul92.
Awarded forfeiture of $205.00 per month for 1 month, restriction and extra duties for 14 days. Forfeiture suspended for 6 months. Not appealed.
930917:  Summary Court-Martial.
         Charge I: violation of the UCMJ, Article 92:
         Specification: Fail to obey order on 8 Jun93, to wit: wrongfully possessing a .22 caliber "REM" round in his bachelor enlisted quarters.
         Charge II: violation of the UCMJ, Article 121 (2 specs):
         Specification 1: Wrongfully appropriate an Automated Teller Machine card, the property of Naval Federal Credit Union on 3Jun93.
         Specification 2: Steal currency of a value of about $100.00, the property of Lance Corporal on 3Jun93.
         Charge III: violation of the UCMJ, Article 123a:
         Specification: Wrongfully and unlawfully make and utter certain drafts upon the Navy Federal Credit Union between 20Apr93 and 12May93 for a total of $315.00 knowing that he would not have sufficient funds in or credit with such depository for the payment of drafts.
         Finding: to Charge I, II and III and the specifications thereunder, guilty.
         Sentence: Forfeiture of $542.00, reduced to Pvt.
         CA action 930923: Sentence approved and ordered executed.

940314:  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 134 (2 specs): (1) Wrongfully use an unauthorized access code, to wit: AT&T access number belonging to Cpl to obtain interstate and international telephone services aggregating $325.88 between 26Oct93 and 9Nov93, (2) Falsely pretend to AT&T Long Distance services, that he was authorized to use the long distance services between 26Oct93 and 9Nov93.

940324:  SJA review determined the case sufficient in law and fact.

940324:  GCMCA [Commander, 2d MAW] 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.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

 Discussion

The applicant was discharged on 940331 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).

The applicant did not introduce any decisional issues to be considered by the Board. The following comments are provided based on the personal letters provided.

The applicant’s discharge characterization accurately reflects his service to his country. The Board found that the applicant’s age, education level, and test scores qualified him for enlistment. While he may feel that his family upbringing was a factor that contributed to his actions, the record clearly reflects his willful disregard for the requirements of military discipline and demonstrated that he was unfit for further service. The record is devoid of evidence that the applicant was not responsible for his conduct or that he should not be held accountable for his actions. 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 relief, 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 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 92, failure to obey a lawful general order; Article 121, larceny; Article 134, false statements.
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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