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USMC | DRB | 2002_Marine | MD02-00306
Original file (MD02-00306.rtf) Auto-classification: Denied


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

ex-Pvt, USMC
Docket No. MD02-00306

Applicant’s Request
The application for discharge review, received 020123, 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 list any representative on the DD Form 293. In the acknowledgement letter to the applicant, he was informed that he was approaching the 15 year point for review by this Board and was encouraged to attend a personal appearance hearing in the Washington, D.C. area. The applicant did not respond.

 Decision

A documentary discharge review was conducted in Washington, D.C. on 020829. 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 court-martial (SPCM) – Other, authority: MARCORSEPMAN Par. 1105.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as submitted

 1. At the age of 17, I joined the United States Marine Corps. I thought that it was a way to make me into a man and be responsible. I soon came to learn about finances. The hard way! I got caught in the messy web of the "We finance military" establishments. I got in over my head financially. I ended up writing checks to cover what was due. Then I started writing checks to cover those checks. Which is what brought my court martial. This ended with brig time and a Bad Conduct Discharge. Over the years I have found difficulty in perusing some of the employment opportunities because of my discharge.
Now in a time of turmoil in our country, I am finding an even greater situation stirring inside. I am finding that my present discharge is holding me back even further. I would like to once again be part of the World's greatest military force. If I am granted an upgrade for my discharge, I am planning on re-enlisting back into the United States Marines Corps. I would also accept the contingency that my discharge would be upgraded based on the terms of re-enlistment. I would like to once again be able to stand proud as an American and as a member of the World's finest! Sincerely,

 Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
None

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
         Inactive: USMCR(J)                840914 – 841008  COG

 Period of Service Under Review :
Date of Enlistment: 841009               Date of Discharge: 870204

 Length of Service (years, months, days):

         Active: 02 04 26
         Inactive: None

 Age at Entry: 17                          Years Contracted: 4

 Education Level: 12                        AFQT: 88

 Highest Rank: LCpl

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 4.0 (7)                       Conduct: 3.7 (7)

 Military Decorations: None

 Unit/Campaign/Service Awards: None

 Days of Unauthorized Absence: None

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

BAD CONDUCT DISCHARGE/As a result of a court-martial (SPCM) - Other, authority: MARCORSEPMAN Par. 1105.

 Chronological Listing of Significant Service Events :

850910:  Counseled for deficiencies in performance and conduct. [Activities of a disreputable nature in his dealings with other Marine's property. SNM has a tendency to take the property of others to include his roommates.] Disciplinary and discharge warning issued.

860317:  Special Court-Martial.
         Charge I: violation of the UCMJ, Article 123a (34 specifications):
                   Specification 1: With intent to defraud and for the procurement of a thing of value, wrongfully and unlawfully make a certain check upon the Wachovia Bank and Trust Company, in the amount of $100.00, then knowing that he, the maker thereof, did not or would not have sufficient funds in or credit with such bank for the payment of the check in full upon its presentment on 7 Oct 85. (Guilty)
                  Specification 2: With intent to defraud and for the procurement of a thing of value, wrongfully and unlawfully utter to the Marine Corps Exchange a certain check upon the Wachovia Bank and Trust Company, in the amount of $100.00, then knowing that he, the maker thereof, did not or would not have sufficient funds in or credit with such bank for the payment of the check in full upon its presentment on 7 Oct 85. (Not Guilty)
                  Specification 3: With intent to defraud and for the procurement of a thing of value, wrongfully and unlawfully make a certain check upon the Wachovia Bank and Trust Company, in the amount of $50.00, then knowing that he, the maker thereof, did not or would not have sufficient funds in or credit with such bank for the payment of the check in full upon its presentment on 10 Oct 85. (Guilty)
                  Specification 4: With intent to defraud and for the procurement of a thing of value, wrongfully and unlawfully utter to the Marine Corps Exchange a certain check upon the Wachovia Bank and Trust Company, in the amount of $50.00, then knowing that he, the maker thereof, did not or would not have sufficient funds in or credit with such bank for the payment of the check in full upon its presentment on 10 Oct 85. (Not Guilty)
                  Specification 5: With intent to defraud and for the procurement of a thing of value, wrongfully and unlawfully make a certain check upon the Wachovia Bank and Trust Company, in the amount of $100.00, then knowing that he, the maker thereof, did not or would not have sufficient funds in or credit with such bank for the payment of the check in full upon its presentment on 11 Oct 85. (Guilty)
                  Specification 6: With intent to defraud and for the procurement of a thing of value, wrongfully and unlawfully utter to the Marine Corps Exchange a certain check upon the Wachovia Bank and Trust Company, in the amount of $100.00, then knowing that he, the maker thereof, did not or would not have sufficient funds in or credit with such bank for the payment of the check in full upon its presentment on 11 Oct 85. (Not Guilty)
                  Specification 7: With intent to defraud and for the procurement of a thing of value, wrongfully and unlawfully make a certain check upon the Wachovia Bank and Trust Company, in the amount of $100.00, then knowing that he, the maker thereof, did not or would not have sufficient funds in or credit with such bank for the payment of the check in full upon its presentment on 15 Oct 85. (Guilty)
                  Specification 8: With intent to defraud and for the procurement of a thing of value, wrongfully and unlawfully utter to the Marine Corps Exchange a certain check upon the Wachovia Bank and Trust Company, in the amount of $100.00, then knowing that he, the maker thereof, did not or would not have sufficient funds in or credit with such bank for the payment of the check in full upon its presentment on 15 Oct 85. (Not Guilty)
                  Specification 9: With intent to defraud and for the procurement of a thing of value, wrongfully and unlawfully make a certain check upon the Wachovia Bank and Trust Company, in the amount of $60.00, then knowing that he, the maker thereof, did not or would not have sufficient funds in or credit with such bank for the payment of the check in full upon its presentment on 15 Oct 85. (Guilty)
                  Specification 10: With intent to defraud and for the procurement of a thing of value, wrongfully and unlawfully utter to the Marine Corps Exchange a certain check upon the Wachovia Bank and Trust Company, in the amount of $60.00, then knowing that he, the maker thereof, did not or would not have sufficient funds in or credit with such bank for the payment of the check in full upon its presentment on 15 Oct 85. (Not Guilty)
                  Specification 11: With intent to defraud and for the procurement of a thing of value, wrongfully and unlawfully make a certain check upon the Wachovia Bank and Trust Company, in the amount of $100.00, then knowing that he, the maker thereof, did not or would not have sufficient funds in or credit with such bank for the payment of the check in full upon its presentment on 16 Oct 85. (Guilty)
                  Specification 12: With intent to defraud and for the procurement of a thing of value, wrongfully and unlawfully utter to the Marine Corps Exchange a certain check upon the Wachovia Bank and Trust Company, in the amount of $100.00, then knowing that he, the maker thereof, did not or would not have sufficient funds in or credit with such bank for the payment of the check in full upon its presentment on 16 Oct 85. (Not Guilty)
                  Specification 13: With intent to defraud and for the procurement of a thing of value, wrongfully and unlawfully make a certain check upon the Wachovia Bank and Trust Company, in the amount of $100.00, then knowing that he, the maker thereof, did not or would not have sufficient funds in or credit, with such bank for the payment of the check in full upon its presentment on 18 Oct 85. (Guilty)
                  Specification 14: With intent to defraud and for the procurement of a thing of value, wrongfully and unlawfully utter to the Marine Corps Exchange a certain check upon the Wachovia Bank and Trust Company, in the amount of $100.00, then knowing that he, the maker thereof, did not or would not have sufficient funds in or credit with such bank for the payment of the check in full upon its presentment on 18 Oct 85. (Not Guilty)
                  Specification 15: With intent to defraud and for the procurement of a thing of value, wrongfully and unlawfully make a certain check upon the Wachovia Bank and Trust Company, in the amount of $100.00, then knowing that he, the maker thereof, did not or would not have sufficient funds in or credit with such bank for the payment of the check in full upon its presentment on 22 Oct 85. (Guilty)
                  Specification 16: With intent to defraud and for the procurement of a thing of value, wrongfully and unlawfully utter to the Marine Corps Exchange a certain check upon the Wachovia Bank and Trust Company, in the amount of $100.00, then knowing that he, the maker thereof, did not or would not have sufficient funds in or credit with such bank for the payment of the check in full upon its presentment on 22 Oct 85. (Not Guilty)
                  Specification 17: With intent to defraud and for the procurement of a thing of value, wrongfully and unlawfully make a certain check upon the Wachovia Bank and Trust Company, in the amount of $100.00, then knowing that he, the maker thereof, did not or would not have sufficient funds in or credit with such bank for the payment of the check in full upon its presentment on 23 Oct 85. (Guilty)
                  Specification 18: With intent to defraud and for the procurement of a thing of value, wrongfully and unlawfully utter to the Marine Corps Exchange a certain check upon the Wachovia Bank and Trust Company, in the amount of $100.00, then knowing that he, the maker thereof, did not or would not have sufficient funds in or credit with such bank for the payment of the check in full upon its presentment on 23 Oct 85. (Not Guilty)
                  Specification 19: With intent to defraud and for the procurement of a thing of value, wrongfully and unlawfully make a certain check upon the Wachovia Bank and Trust Company, in the amount of $100.00, then knowing that he, the maker thereof, did not or would not have sufficient funds in or credit with such bank for the payment of the check in full upon its presentment on 25 Oct 85. (Guilty)
                  Specification 20: With intent to defraud and for the procurement of a thing of value, wrongfully and unlawfully utter to the Marine Corps Exchange a certain check upon the Wachovia Bank and Trust Company, in the amount of $100.00, then knowing that he, the maker thereof, did not or would not have sufficient funds in or credit with such bank for the payment of the check in full upon its presentment on 25 Oct 85. (Not Guilty)
                  Specification 21: With intent to defraud and for the procurement of a thing of value, wrongfully and unlawfully make a certain check upon the Wachovia Bank and Trust Company, in the amount of $100.00, then knowing that he, the maker thereof, did not or would not have sufficient funds in or credit with such bank for the payment of the check in full upon its presentment on 27 Oct 85. (Guilty)
                  Specification 22: With intent to defraud and for the procurement of a thing of value, wrongfully and unlawfully utter to the Marine Corps Exchange a certain check upon the Wachovia Bank and Trust Company, in the amount of $100.00, then knowing that he, the maker thereof, did not or would not have sufficient funds in or credit with such bank for the payment of the check in full upon its presentment on 27 Oct 85. (Not Guilty)
                  Specification 23: With intent to defraud and for the procurement of a thing of value, wrongfully and unlawfully make a certain check upon the Wachovia Bank and Trust Company, in the amount of $100.00, then knowing that he, the maker thereof, did not or would not have sufficient funds in or credit with such bank for the payment of the check in full upon its presentment on 28 Oct 85. (Guilty)
                  Specification 24: With intent to defraud and for the procurement of a thing of value, wrongfully and unlawfully utter to the Marine Corps Exchange a certain check upon the Wachovia Bank and Trust Company, in the amount of $100.00, then knowing that he, the maker thereof, did not or would not have sufficient funds in or credit with such bank for the payment of the check in full upon its presentment on 28 Oct 85. (Not Guilty)
                  Specification 25: With intent to defraud and for the procurement of a thing of value, wrongfully and unlawfully make a certain check upon the Wachovia Bank and Trust Company, in the amount of $100.00, then knowing that he, the maker thereof, did not or would not have sufficient funds in or credit with such bank for the payment of the check in full upon its presentment on 29 Oct 85. (Guilty)
                  Specification 26: With intent to defraud and for the procurement of a thing of value, wrongfully and unlawfully utter to the Marine Corps Exchange a certain check upon the Wachovia Bank and Trust Company, in the amount of $100.00, then knowing that he, the maker thereof, did not or would not have sufficient funds in or credit with such bank for the payment of the check in full upon its presentment on 29 Oct 85. (Not Guilty)
                  Specification 27: With intent to defraud and for the procurement of a thing of value, wrongfully and unlawfully make a certain check upon the Wachovia Bank and Trust Company, in the amount of $100.00, then knowing that he, the maker thereof, did not or would not have sufficient funds in or credit with such bank for the payment of the check in full upon its presentment on 29 Oct 85. (Guilty)
                  Specification 28: With intent to defraud and for the procurement of a thing of value, wrongfully and unlawfully utter to the Marine Corps Exchange a certain check upon the Wachovia Bank and Trust Company, in the amount of $100.00, then knowing that he, the maker thereof, did not or would not have sufficient funds in or credit with such bank for the payment of the check in full upon its presentment on 29 Oct 85. (Not Guilty)
                  Specification 29: With intent to defraud and for the procurement of a thing of value, wrongfully and unlawfully make a certain check upon the Wachovia Bank and Trust Company, in the amount of $100.00, then knowing that he, the maker thereof, did not or would not have sufficient funds in or credit with such bank for the payment of the check in full upon its presentment on 3 Oct 85. (Guilty)
                  Specification 30: With intent to defraud and for the procurement of a thing of value, wrongfully and unlawfully utter to the Marine Corps Exchange a certain check upon the Wachovia Bank and Trust Company, in the amount of $100.00, then knowing that he, the maker thereof, did not or would not have sufficient funds in or credit with such bank for the payment of the check in full upon its presentment on 3 Oct 85. (Not Guilty)
                  Specification 31: With intent to defraud and for the procurement of a thing of value, wrongfully and unlawfully make a certain check upon the Wachovia Bank and Trust Company, in the amount of $50.00, then knowing that he, the maker thereof, did not or would not have sufficient funds in or credit with such bank for the payment of the check in full upon its presentment on 8 Oct 85. (Guilty, except for the words "Mrytle [sic] Beach Air Force Base, South Carolina," substituting therefor the words "Fort Fisher, Wilmington, North Carolina." Of the excepted words, Not Guilty; of the substituted words, Guilty; and of the specification as excepted and substituted, Guilty.)
                  Specification 32: With intent to defraud and for the procurement of a thing of value, wrongfully and unlawfully utter to Myrtle Beach Air Force Base Exchange a certain check upon the Wachovia Bank and Trust Company, in the amount of $50.00, then knowing that he, the maker thereof, did not or would not have sufficient funds in or credit with such bank for the payment of the check in full upon its presentment on 8 Oct 85. (Not Guilty)
                  Specification 33: With intent to defraud and for the procurement of a thing of value, wrongfully and unlawfully make a certain check upon the Wachovia Bank and Trust Company, in the amount of $45.00, then knowing that he, the maker thereof, did not or would not have sufficient funds in or credit with such bank for the payment of the check in full upon its presentment on 9 Oct 85. (Guilty, except for the words "Mrytle [sic] Beach Air Force Base, South Carolina," substituting therefor the words "Fort Fisher, Wilmington, South [sic] Carolina." Of the excepted words, Not Guilty; of the substituted words, Guilty; and of the Specification as excepted and substituted, Guilty.)
                  Specification 34: With intent to defraud and for the procurement of a thing of value, wrongfully and unlawfully utter to the Myrtle Beach Air Force Base Exchange a certain check upon the Wachovia Bank and Trust Company, in the amount of $45.00, then knowing that he, the maker thereof, did not or would not have sufficient funds in or credit with such bank for the payment of the check in full upon its presentment on 9 Oct 85. (Not Guilty)
          Findings: to Charge I and specification 1, 3, 5, 7, 9, 11, 13, 15, 17, 19, 21, 23, 25, 27, 29, 30, 31, 33 thereunder, guilty. To specification 2, 4, 6, 8, 10, 12, 14, 16, 18, 20, 22, 24, 26, 28, 30, 32, 34 under Charge I, not guilty.
         Sentence: Forfeiture of $200.00 pay per month for 3 months, confinement for 3 months, reduction to Pvt, and a bad conduct discharge.
         CA 860529: The finding of guilty of Specification 33 of the Charge is changed to a finding of guilty of the conduct alleged, with the knowledge and intent alleged, at the time alleged, at Fort Fisher, Wilmington, North Carolina. The sentence approved and ordered executed except for the BCD.

860317:  To confinement, Sentence of SPCM.

860417:  NC&PB review waived.

860601:  From confinement.

860619:  To appellate leave.

860821:  NMCCMR: Affirmed findings and sentence.

870204:  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 involuntarily separated on 870204 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 Board has no authority to upgrade a discharge for the purpose of enhancing employment opportunities or to facilitate reenlistment as requested in the issue. 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). In the applicant’s case the Board could discern no impropriety or inequity and therefore considered the applicant’s discharge was proper and equitable. The applicant’s discharge characterization accurately reflects his service to his country. The NDRB has no authority to change reenlistment codes or make recommendations to permit reenlistment, reentry, or reinstatement into the Naval Service or any other branch of the Armed Forces. 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. Relief not warranted.




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 123, insufficient funds.
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 “ afls14.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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