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USMC | DRB | 2002_Marine | MD02-00033
Original file (MD02-00033.rtf) Auto-classification: Denied


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


ex-Pvt, USMC
Docket No. MD02-00033

Applicant’s Request
The application for discharge review, received 010926, 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 listed American Legion as his representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 020715. 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, as submitted

 1. (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.
Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
Letter from Applicant (2 pages)
Unofficial Transcript from Bethel College
 Employment History Listing
 Motor Vehicle Record
PFC (Meritoriously) Appointee Citation
 Copy of DD Form 214
 Copy of Meritorious Mast Certificate

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: USMC              None
          Inactive: USMCR(J)                931105 - 931128  COG
Period of Service Under Review :
Date of Enlistment: 931129               Date of Discharge: 970723

 Length of Service (years, months, days):
         Active: 03 05 10
          Inactive: None

 Age at Entry: 18                          Years Contracted: 4

Education Level: 12                        AFQT: 50

 Highest Rank: PFC
Final Enlisted Performance Evaluation Averages (number of marks):
Proficiency: 4.6 (7)                       Conduct: 4.1 (7)

 Military Decorations: None
Unit/Campaign/Service Awards: NDSM, MM, Rifle Marksman Badge, Pistol Marksman Badge

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 :

960425:  Special Court Martial
          Charge I: violation of the UCMJ, Article 121 (8 Specifications):
          Specification 1: On or about 941201 and 950116 steal (1) gold rope chain with an eagle, globe and anchor pendant, of a value of over $100.00, the property of LCpl J_M. D_, UCMJ; Specification 2: On or about 941201 and 950630 steal Cyberginics Phase I supplements, of a value, the property of LCpl D_ L. J_, UCMJ; Specification 3: On or about 950401 and 950531, steal five compact discs, of some value, the property of LCpl E_ C_, USMC, Specification 4: On or about 950201 and 950309, steal (1) Craftsman 3/8 drill with black case, of some value, the property of Mr. M_ J. N_; Specification 5: On or about 950401 and 950519, steal 12 compact discs, of a total value of over $100.00, the property of Columbia House Records; Specification 6: On or about 950601 and 950615, steal (1) Emerald and Diamond ring, of some value, the property of Miss A_ J. C_; Specification 7: On or about 951001 and 951005, steal (1) Sapphire and Diamond ring, of a value of over $100.00, the property of Miss A_ J. C_; Specification 8: On or about 951001 and 951231, steal U.S. Currency, of a value of $20.00, the property of Miss A_ J. C_.
          Findings: to Charge I and specifications1, 2, 3, 5, 6, 7, and 8 thereunder, guilty. To specification 4 under Charge I, withdrawn.
          Sentence: Confinement for 100 days, forfeiture of $500.00 pay per month for 3 months, reduction to E-1, and a bad conduct discharge.
          CA 960912: Sentence approved and ordered executed except for the bad conduct discharge, however, pursuant to the terms of the pretrial agreement, that portion of the sentence extending to confinement in excess of 90 days is suspended for a period of twelve months from the date of trial, at which time, unless sooner vacated, the suspended part of the sentence will be remitted without further action.
        
960425:  To confinement, sentence of SPCM.

960709:  From confinement, to duty.

960821:  To appellate leave.

970131:  NMCCMR: Affirmed findings and sentence.

970710:  COMA: Petition for review denied.

970723:  SSPCMO: Article 71c, UCMJ, having been complied with, Bad Conduct discharge will be executed.

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 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. 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.
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 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      

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