Search Decisions

Decision Text

USMC | DRB | 2001_Marine | MD01-01100
Original file (MD01-01100.rtf) Auto-classification: Denied


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


ex-Pvt, USMC
Docket No. MD01-01100

Applicant’s Request
The application for discharge review, received 010820, requested that the characterization of service on the discharge be changed to entry level separation or uncharacterized. 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 020417. 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

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

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
          Inactive: USMCR(J)                921113 - 930616  COG

 Period of Service Under Review :
Date of Enlistment: 930617               Date of Discharge: 980225

 Length of Service (years, months, days):
         Active: 04 07 08
          Inactive: None
Age at Entry: 18                          Years Contracted: 4

 Education Level: 12                        AFQT: 74
Highest Rank: Cpl

 Final Enlisted Performance Evaluation Averages (number of marks):
Proficiency: 4.5 (9)                       Conduct: 4.4 (9)

 Military Decorations: None
Unit/Campaign/Service Awards: NDSM, SSDR, AFSM

 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 :

931203:  NJP for violation of UCMJ, Article 128:
 Specification: Assault PFC on 26Nov93, to wit: by striking her twice in the abdominal region.
 Awarded forfeiture of $456.00 per month for 1 month, restriction and extra duties for 14 days. Not appealed.
950614:  Counseled for deficiencies in performance and conduct [Specifically driving on the state license suspension from both Tennessee and North Carolina. At 2220, 17May95 you were apprehended by military police at the Midway Park Gate. You further aggravated this incident by not being truthful in word or deed to your PLT Commander, PLT Sgt, or section head]. Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
970127:  Special Court-Martial.
          Charge I: violation of the UCMJ, Article 109 (3 specs):
          Specification 1: Willfully and wrongfully damage a care window by forcefully striking it with his elbow on 8Sep96, the amount of said damage being in excess of $100.00, the property of E_ M_.
          Specification 2: Willfully and wrongfully damage a car window by forcefully striking it with his elbow on 8Sep96, the amount of said damage being in excess of $100.00, the property of Chief Warrant Officer 2.
         Specification 3: Willfully and wrongfully damage a car window by forcefully striking it with his elbow on 8Sep96, the amount of said damage being in excess of $100.00, the property of Gunner's Mate Guns 1.
         Charge II: violation of the UCMJ, Article 121 (2 specs):
         Specification 1: Steal one "Sony" brand portable CD player, and one automobile tape deck adapter on 8Sep96, of a value of more than $100.00, the property of E_ M_
         Specification 2: Steal one electric screwdriver, one pair of wire cutters, one hammer, and on crowbar, military property on 8Sep96, of some value, the property of the U.S. Army.
         Charge III: violation of the UCMJ, Article 134:
         Specification 1:Wrongfully impede an investigation, in the case of a Corporal on 8 Sep96 by receiving and disposing of a stolen cellular phone, the property of I_ N_
         Findings: to Charge I specification 1-2, Charge II specification 1 thereunder, guilty. Charge I: Guilty, adding the words, "attempt to " before the word "willfully". To the specification as added: Guilty; to the specification as written and completed: Not Guilty, that is guilty to the lesser included offense in Specification 3, Guilty of attempted willful destruction of private property, Charge II, Specification 2: Guilty of the named lesser included offense of wrongful appropriation, Charge III: Dismissed without prejudice prior to findings, to ripen into dismissal with prejudice upon announcement of the sentence.
         Sentence: Forfeiture of $600 per month for 4 months, confinement for 4 months, and a bad conduct discharge.
         CA 970528: Sentence approved and, except for that part of the sentence extending to a bad conduct discharge, will be executed; however, the execution of that portion of the sentence adjudging confinement in excess of 60 days will be suspended for a period of 12 months from the date of the convening authority's action, at which time, unless sooner vacated, the suspended portion of the sentence will be remitted without further action.

970127:  To confinement, Sentence of SPCM.

970317:  From confinement, to duty.

 970612:  To appellate leave.
970821:  NC&PB denied clemency and restoration.
970919:  NMCCMR: Affirmed findings and sentence.
980225:  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 980225 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).
The applicant introduced no decisional issues for consideration by the Board.
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.
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 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 109, damage non-government property; Article 121, larceny; 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      

Similar Decisions

  • USMC | DRB | 2006_Marine | MD0600945

    Original file (MD0600945.rtf) Auto-classification: Denied

    MD06-00945 Applicant’s Request The application for discharge review was received on 20060706. Equity – Minor offenses, substance abuse did not involve distribution Documentation In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:Applicant’s DD Form 214 (Member 1)Applicant’s DD Form 214 (Member 4) Applicant’s DD Form 214 (State Director of Veterans Affairs)Letter from Applicant PART II - SUMMARY OF SERVICE Prior Service...

  • USMC | DRB | 1999_Marine | MD99-00577

    Original file (MD99-00577.rtf) Auto-classification: Denied

    After a thorough review of the applicant’s service record, the documentation submitted by the applicant, and the testimony of the applicant, the Board was unanimous in its decision not to upgrade the applicant’s discharge. 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).Regarding the applicant’s equity issue, the Board has no authority to change a punitive...

  • USMC | DRB | 2003_Marine | MD03-00886

    Original file (MD03-00886.rtf) Auto-classification: Denied

    The Applicant requests the characterization of service received at the time of discharge be changed to honorable. The Naval Discharge Review Board (NDRB) also advised that the Board first conducts a documentary review prior to any personal appearance hearing. I am submitting from DD 293 to the review board and I am asking that my “Other than Honorable Conditions” discharge be upgraded to Honorable.

  • USMC | DRB | 2001_Marine | MD01-00688

    Original file (MD01-00688.rtf) Auto-classification: Denied

    PART I - APPLICANT’S ISSUES AND DOCUMENTATION PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW Discussion The applicant was discharged on 990630 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 Manual for Courts-Martial authorizes the award of a punitive discharge if adjudged as part of the sentence upon...

  • USMC | DRB | 2003_Marine | MD03-00808

    Original file (MD03-00808.rtf) Auto-classification: Denied

    PART I - APPLICANT’S ISSUES AND DOCUMENTATION “(Equity Issue) Pursuant to 10 USC 874 (b) (UCMJ, Article 74) and in accordance with SECNAVINST 5420.174C, enclosure (1), paragraphs 2.24 and 9.3, this former member requests the Board’s clemency relief with up-grade of his characterization of service on the basis of his post-service conduct.” 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...

  • NAVY | DRB | 2004_Navy | ND04-00268

    Original file (ND04-00268.rtf) Auto-classification: Denied

    ND04-00268 Applicant’s Request The application for discharge review was received on 20031209. PART I - APPLICANT’S ISSUES AND DOCUMENTATION PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW Discussion The Applicant was discharged on 20000321 with a bad conduct discharge which was the sentence adjudged by a properly convened special court-martial.

  • USMC | DRB | 2002_Marine | MD02-00033

    Original file (MD02-00033.rtf) Auto-classification: Denied

    (Equity Issue) Pursuant to 10 USC 874 (b) (UCMJ, Article 74) and in accordance with SECNAVINST 5420.174C, enclosure (1), paragraph 2.24 and 9.3, this former member requests the Board's clemency relief with up-grade of his characterization of service to under honorable conditions on the basis of his post-service conduct. PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW Discussion The applicant was discharged on 970723 with a bad conduct discharge which was the sentence adjudged...

  • USMC | DRB | 2001_Marine | MD01-00922

    Original file (MD01-00922.rtf) Auto-classification: Denied

    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. 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...

  • NAVY | DRB | 2003_Navy | ND03-00997

    Original file (ND03-00997.rtf) Auto-classification: Denied

    PART I - APPLICANT’S ISSUES AND DOCUMENTATION Documentation In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:Copies of DD Form 214 (2) DD Form 149 Letter from D. L. K___, Board for Correction of Naval Records to MS K____ S. J___ PART II - SUMMARY OF SERVICE Prior Service (component, dates of service, type of discharge): Inactive: USNR (DEP) 970530 - 970729 COG Active: USN None Period of Service Under Review :Date of...

  • NAVY | DRB | 2002_Navy | ND02-01195

    Original file (ND02-01195.rtf) Auto-classification: Denied

    Documentation In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:DD Form 149 Letter from Applicant Letter of recommendation from P_ E. B_ Letter of recommendation from H. W. J_ Drug screening certification dated June 18, 2002 Letter of recommendation from W_ L. C_ Letter of recommendation from L_ H_ Letter of recommendation from A_ D. N_ PART II - SUMMARY OF SERVICE Prior Service (component, dates of service, type of...