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USMC | DRB | 2001_Marine | MD01-00922
Original file (MD01-00922.rtf) Auto-classification: Denied


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


ex-PVT, USMC
Docket No. MD01-00922

Applicant’s Request
The application for discharge review, received 010709, requested that the characterization of service on the discharge be changed to general/under honorable conditions. 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 020118. 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. I am asking for an upgrade from a Bad Conduct discharge that I received on my second discharge based upon my service records, two good conduct medals, certificate of appreciation, pro and con of 4.5 and 4.8 4 years first Enlistment Honorable. Seven years of Good Service. One altercation Special Court Martial I Lose Rank, Pay, Base housing, two month in the Brig 3 to 2 month Later I asked my Commanding Officer for my discharge due to a wife and to children that I could not support. I accepted my discharge not fully understanding the recourse of my action Leaving under thus condition returning to Civilian Life A Bad Conduct discharge prevents a person from the Better employment I am asking for an upgrade to General Under Honorable Conditions for Better Employment and a Life.
Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
Copies of DD Form 214 (2)

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: USMC              790110 - 831026  HON
          Inactive: USMCR(J)                None
Period of Service Under Review :
Date of Enlistment: 831027               Date of Discharge: 880701

 Length of Service (years, months, days):
         Active: 03 01 13
          Inactive: None
Age at Entry: 22                          Years Contracted: 4

Education Level: 12                        AFQT: 31
Highest Rank: Cpl

 Final Enlisted Performance Evaluation Averages (number of marks):
Proficiency: 4.0 (9)                       Conduct: 4.1 (8)

 Military Decorations: None
Unit/Campaign/Service Awards: Rifle Expert Badge (2 nd ), Pistol Sharpshooter Badge, MCEM, GCMw1*, SSDR, COA

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 :

831027:  Reenlisted at HQSVC Co 3dBn 4thMar 2dMarDiv for 4 years.
860626:  Special Court-Martial.
          Charge I: violation of the UCMJ, Article 128 (2 Specifications):
         Specification 1: Did, on or about 860501, unlawfully strike Cpl E____ W. C____, USMC, in the face and ribs with his fist and by kicking him in the head and body with his feet.
         Specification 2: Did, on or about 860501, unlawfully grab N____ M. C___, a child under age of 16, on the arm with his hand.
          Findings: to Charge I and specification 1 and 2 thereunder, guilty.
         Sentence: Confinement for 3 months, reduction to E-2, and a bad conduct discharge (Pre-trial agreement limited sentence to Reduction to PFC (E-2), confinement at hard labor for 60 days, and BCD suspended for 12 months)
 CA 860715: Sentence (as per pre-trial agreement) approved.
          CA 860912: Sentence approved and, except for that part of the sentence extending to a bad conduct discharge, will be executed, but the execution of that part of the sentence adjudging a bad conduct discharge is suspended for one year from the date of this action at which time, unless the suspension is sooner vacated, the suspended part of the sentence will be remitted without further action.

861014:  NJP for violation of UCMJ, Article 109: By recklessly spinning his automobile wheels in gravel causing damage to the rear window of a POV owned by Cpl J______, L. in the amount of $265.00, violation of UCMJ Article 111: By operating his POV in a manner that was potentially dangerous to the safety and rights of others at 3d FAAD Btry, MACG-38, 3d MAW, MCB Camp Pendleton, CA on or about 0830, 860922, violation of UCMJ Article 86: UA (AWOL) from his organization 3d FAAD Btry, MACG-38, 3d MAW, MCB Camp Pendleton, CA from 1300, 860925 to 0730, 860926, violation of UCMJ Article 86: UA (AWOL) from his organization 3d FAAD Btry, MACG-38, 3d MAW, MCB Camp Pendleton, CA from 0731, 861006 to 0730, 861007.
         Award: Forfeiture of $200.00 per month for 2 months, reduction to E-1. Not appealed.

 861110:  The suspension of the BCD vacated.
861202:  Applicant waived rights to clemency review.
861203:  Counseled this date for positive urinalysis for Cocaine.

 861209:  Received orders for involuntary appellate leave.
870317:  NMCCMR: Affirmed findings and sentence.
880114:  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 880701 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).
Issue 1. 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 (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.
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 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 86, unauthorized absence; Article 109, damage to property; Article 128, Assault.
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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