Upgrade.Vet

USMC | DRB | 2001_Marine | MD01-01027

Original file (MD01-01027.rtf) Auto-classification: Denied

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

ex-Pvt, USMC
Docket No. MD01-01027

Applicant’s Request

The application for discharge review, received 010803, requested that the characterization of service on the discharge be changed to under honorable conditions and the reason for the discharge be changed to humanitarian discharge. The applicant requested a documentary record discharge review. The applicant did not designate a representative on the DD Form 293. Subsequent to the application, the applicant obtained representation by the Disabled American Veterans.

Decision

A documentary discharge review was conducted in Washington, D.C. on 020620. 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 characterization and reason for 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 would like to ask the Board for an upgrade in my discharge; my issues are I was an honest marine up until the one and only mistake I have ever made in my life. I regret it every day because I'm very honored and proud to say I'm a Marine. What I did was disgraceful and I'm very sorry, but I was under a lot of added stress that I didn't know how to handle. What happened was my son was very sick, he was 4 months old, and he was diagnosed with brain cancer. I was only 19 years old, young, stupid; and didn't know what to do. It took me off my feet when my son was dying and I couldn't stand to tell my wife (girlfriend then) that I had no money to help live and feed us while we were in the hospital with my son deathly ill. So being not in the right frame of mind I acted very poorly and careless and made the only mistake I've ever made. I regret what I did, I wish I was thinking clearly the day it happened. But I was honest with everybody and took full responsibility of my actions. I beg the Board not to hold the one and only mistake against me. I'm proud to say I have been instilled with the best Pride of being a Marine. Since my discharge, me and my wife have lost our son to cancer and it was the hardest thing that has ever happened to me. I was young and I didn't know how to deal with it. My actions were childish. But now I'm 26 years old married for 7 years - together 9 years ith my wife. We have another son who is 4 years old. I have worked everyday for my family and I have learned a valuable lesson. I have never been arrested in my civilian life, or in my military career, except that once. And now at this point of my life, I'm trying to improve my life by being a police officer. I'm a hard worker, don’t get into trouble, and I have joined the Masonic Organization. I'm a Mason & a Marine. I just hope you can see that I have learned a lot from what has happened through my military career. It has taught me discipline to work hard in Life and it has taught me self respect. I am finally improving my life at this point by being a Union Laborer, a Brother Mason, and being able to say I was taught all the important skills in life by the Marine Corps. So I beg for forgiveness and ask for a discharge upgrade. I am trying to become a police officer so that I can improve my life and help teach others what I have learned. And my time in the Marine Corps has taught me an unbelievable amount of knowledge about life and what you need to know to becoming a valuable person, and a team player. And I hope this one mistake won't hold me back from becoming a police officer, and from being able to teach what I've learned to others. Thank you for your time. (Signed by the Applicant)

Submitted by DAV:

Dear Chairperson:

After review of the Former Service Members (FSM) DD Form 293 Application for the Review of Discharge or Dismissal from the Armed Forces of the United States and all of the evidence assembled for review, the FSM request to have his discharge upgraded from Bad Conduct Discharge to one of General Under Honorable Conditions.

As the FSM service organization, it is our contention that the Bad Conduct Discharge awarded to the FSM is unjust due to the untimely persecution of the FSM, It is inconceivable that an organization founded on time honored traditions would persecute one of its own for an indiscretion committed during a time of duress.

The FSM served in the United States Marine Corps from 08 June 1993 to 26 June 1995 with honorable service.

To support the FSM's claim of an unjust and inequitable discharge we must look at the facts of the case. The FSM served in the Marine Corps with honor and dignity. Approximately November 1994 the FSM only child was diagnosed with brain cancer. Being young, inexperienced with the resources provided by the military, and not in the right frame of mind the veteran stole another Marines ATM card and withdrew $180.00 from the account. When confronted the FSM did not deny the action, he took responsibility for his impropriety. The veteran offered as his defense the mitigating circumstances that surrounded the event. The FSM was not married at the time, to the child's mother, because of his rank he had little to no money and felt the over powering need to provide for his child. He attempted to get assistance from Champus as well as other governmental agencies to no prevail. Through his own admittance the FSM fail to temptation and acquired funds through an illegal source. No one knows how they would react if put in the same circumstances. It is all to easy to sit in judgment of another's actions when we are not placed in there situation. This FSM, on several occasions tried to get help through proper channels. His command provided no intervention on his behalf leaving the FSM to manage the best way he could. While the amount of money he took, $180.00, did not seem significant enough to the Court Martial Board to contribute to his child's care, it provided some relief to the immediate situation. In these type of situations most do not see past the immediate situation.

Since discharge the veteran has built a life that is becoming of a Marine. He is married to the woman the mothered the dying child. They have since had another child and have a happy stable home. The FSM volunteers his time to his community and has obtained and sustained gainful employment. He has had no altercations with law enforcement and in fact is seeking employment as a police officer.

The veteran does not now nor has he ever denied the wrongfulness of his act. However he request that consideration be given to the circumstances surrounding the event. As the FSM's service organization, we ask for the Boards careful and sympathetic consideration of all the evidence of record used in rendering a fair and impartial decision. These issues do not supersede any issues previously submitted by the applicant.

Documentation

Only the service and medical records were reviewed, as the applicant did not provide additional documentation for the Board to consider.

PART II - SUMMARY OF SERVICE

Prior Service (component, dates of service, type of discharge):

         Active: None
         Inactive: USMCR(J)                921027 - 930607 COG

Period of Service Under Review :

Date of Enlistment: 930608               Date of Discharge: 950626

Length of Service (years, months, days):

         Active: 02 00 19
         Inactive: None

Age at Entry: 18                          Years Contracted: 4

Education Level: 12                        AFQT: 35

Highest Rank: PFC

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency: NMF*                          Conduct: NMF

Military Decorations: None

Unit/Campaign/Service Awards: NDSM, Rifle Marksmanship Badge

Days of Unauthorized Absence: None

*No Marks Found in service record book.

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 :

940524: Special Court-Martial.
         Charge I: violation of the UCMJ, Article 121 (3 Specifications):
         Specification 1: Stole an ATM card, of some valued issued to LCpl R. A. J_, USMC, the property of Marine Federal Credit Union at MCB, Camp Lejeune, on 931214
         Specification 2: Stole $180 U.S. currency, the property of Marine Federal credit Union at MCB, Camp Lejeune, on 931215.
         Specification 3: Stole $50 U.S. currency, the property of Marine Federal Credit Union at MCB, Camp Lejeune, on 931216.
         Added Charge: violation of the UCMJ, Article 107: with intent to deceive, made a false official statement to R. B_, criminal Investigator, by stating "I have never used the card to take money from J_'s account," or words to that effec t which statement was false and known to be false at MCB, Camp Lejeune on 940124.
         Findings: to Charge I and specifications 1 and 2 - guilty, specification 3 - dismissed.
To Added Charge and specification thereunder - guilty.
         Sentence: Reduction to E-1, and a bad conduct discharge.
         CA 940711: Sentence approved and ordered executed except for the BCD.

940811: To appellate leave.

950331: NMCCMR: Affirmed findings and sentence. Specifically found a bad-conduct discharge to be an appropriate part of the appellant's sentence for these offenses considering the nature of the offenses and the appellant's request for a bad-conduct discharge without confinement and the military judge's honoring of that request.

950626: 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 950626 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. The applicant’s discharge characterization accurately reflects his service to his country. 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. No other narrative reason more clearly describes the circumstances surrounding the applicant’s processing for administrative separation.
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 1105, DISCHARGE ADJUDGED BY SENTENCE OF COURTS-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 121, larceny.

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
                  Washington, D.C. 20374-5023

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USMC | DRB | 2001_Marine | MD01-01027

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