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USMC | DRB | 2001_Marine | MD01-01094
Original file (MD01-01094.rtf) Auto-classification: Denied


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

ex-PFC, USMC
Docket No. MD01-01094

Applicant’s Request
The application for discharge review, received 010730, 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 designate a representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 020529. 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 CONDITIONS OTHER THAN HONORABLE/MISCONDUCT, authority: MARCORSEPMAN Par. 6210.7.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

 1. My discharged was improper because the bloody newspaper, nor a set of my finger and palm prints were submitted for evidence.
2. My discharge was improper because I was n ever put in a line-up with other people.
3. My discharge was improper because the composite sketches do not look like me at all. Also I had a bladed-heard in the military.
4. My discharge was improper because the blood group, ABO was found on my jacket and clothing, not the blood type O, but A+.
5. My discharge was improper because none of my prints were founded inside, outside, nor on the weapon by forensic technicians.
6. the prosecution mislead the court into believing the victim's blood group was MNS, when it was indeed ABO. The victim's blood type and the accused blood type, are both among the blood group ABP, not MNS. The accused will admit that the blood found on his clothing, is from the same blood group as the victims, but not the victim's blood type. There are four antigens among the blood group ABO: O, A, B, AB.

 Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
NIS Report dtd 04FEB85 (with charges, statements, etc.)
Naha District Court Judgment dtd 30 Jan 86
Applicant's Stated "Defense Counsel" (8 pages)
Copy of DD Form 214

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
         Inactive: USMCR(J)                830519 - 831107*         COG

 Period of Service Under Review :
Date of Enlistment: 831108*     Date of Discharge: 010511

 Length of Service (years, months, days):

         Active: 17 06 04 (Doesn't exclude lost/confinement time.)
         Inactive: None

 Age at Entry: 18                          Years Contracted: 4*

 Education Level: 12                        AFQT: Not verify

 Highest Rank: PFC

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: NMF**                         Conduct: NMF

 Military Decorations: None

 Unit/Campaign/Service Awards: None

Days of Unauthorized Absence: None, but 5768 days confinement.

*Unable to verify information, enlistment contract not readable.
**No Marks Found in service record book.

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

UNDER CONDITIONS OTHER THAN HONORABLE /MISCONDUCT, authority: MARCORSEPMAN Par. 6210.7

 Chronological Listing of Significant Service Events :

841123:  NJP for violation of UCMJ, Article 113: leaving his post without proper authority.
Awarded forfeiture of pay $250 per month for two months and reduction to pay grade E-1 (suspended for 6 months). Not appealed.
850117:  Applicant, suspected for violation of robbery and murder, transported to Correctional Facility, Camp McTureous, Okinawa and confined at the request of Japanese Police. By status of Forces Agreement, applicant could not be released to the Japanese authorities until a Japanese indictment obtained.

860130:  Applicant convicted in Japanese Naha District Court.
         Sentence: Imprisonment at forced labor for life. 200 days of pretrial detention shall be computed into the term of the above sentence. Cash, two wrist watches and one token coin for the use of a slot machine shall be returned to the family of the victim.
860224:  Applicant notified of intended recommendation for discharge under condition other than honorable by reason of misconduct due to civilian conviction as evidenced by your conviction by Japanese Authorities in the Naha District Court on 30 Jan 86 for intrusion in to habitation and death through robbery.
860224:  Applicant advised of his rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.
860410:  An Administrative Discharge Board convened. Applicant was not present. [Board's finding and recommendation not found in service record.]

860429:  GCMCA [CG, 3d FSSG, FMF, PAC] directed the applicant's discharge upon release from civilian confinement with under conditions other than honorable by reason of misconduct due to civilian conviction.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 010511 under conditions other than honorable for misconduct due to a civilian conviction (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 1-6. In response to the applicant’s issues, the applicant’s conviction by civilian authorities is presumed by the NDRB to be an established fact. The Board found the applicant’s case met the criteria concerning the specific circumstances of the offenses and confinement period required for an involuntary separation due to a civilian conviction [A]. Relief denied.

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 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 6210, Misconduct of the Marine Corps Separation and Retirement Manual, ( MCO P1900.16D), effective 31 January 1997 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 113, misbehavior of a sentinel; and Article 118, murder.
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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