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USMC | DRB | 2002_Marine | MD02-00466
Original file (MD02-00466.rtf) Auto-classification: Denied


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


ex-PVT, USMC
Docket No. MD02-00466

Applicant’s Request
The application for discharge review, received 020226, 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.

Decision

A documentary discharge review was conducted in Washington, D.C. on 021105. 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. I went UA in March of 97. (which I admit was a very bad mistake, for which I paid dearly in lost pay and harassment. I had problems with my numerous commands after that. I would get page 11's for being overweight so I couldn't get promoted or my good conduct medal. My 1 st Sgt at the time (1 st Sgt T_, C_) said he would promoted me back to LCpl on Sept 1, 1997 (He also told my mother who was visiting me) it did not happen. 1 ST T_ said I was 2 LBS overweight. I tried very hard to do what the command wanted- I was never able to do this even tho I excelled in my assignments. I know nothing of the time lost on 19980519-19980524. From 19900106 -19900110 I was stuck in West Virginia from the snow because my ride (who had a 4x4) left me. Both my mother & I called the company and I was told to get back as soon as I could do so safely. See my mother’s statement. From Mar 27, 2001 to May 23, 2001 I was in the brig. I respectfully request that my discharge be changed to honorable so that I can get on with my life. I can only say that I'm sorry for any inconvenience I caused but I do not think I should be punished for the rest of my life. If the review board rules in my favor I will spent my time proving that I am worthy of this. Thank you for your consideration, more to follow.

Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Letter from Applicant's Mother (5pgs)
 Copy of Envelope dated Feb 2001 sent to J_ W. D_
 Copy of Applicant's Birth Certificate
Copy of DD Form 214

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: USMC              None
          Inactive: USMCR(J)                950606 - 960122  COG

 Period of Service Under Review :
Date of Enlistment: 960123               Date of Discharge: 010723

 Length of Service (years, months, days):
         Active: 05 02 26 (Does not include lost time)
          Inactive: None
Age at Entry: 18                          Years Contracted: 4

Education Level: 12                        AFQT: 42

 Highest Rank: LCpl
Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 4.0 (13)                      Conduct: 3.8 (13)
Military Decorations: None

 Unit/Campaign/Service Awards: Rifle Marksman Badge, SSDR(2), HSM, GCM

Days of Unauthorized Absence: 31

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 :

970224:  Counseled for deficiencies in performance and conduct. [Judgement, professional conduct and personal responsibility.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
970408:  NJP for violation of UCMJ, Article 86: UA from A Co, BLT 1/2, without authority, failed to go to his appointed place of duty at the time prescribed to 0600 Morning Formation, violation of UCMJ Article 86: UA from 0700, 970303, without authority, absent himself from his unit, A Co, BLT 1/2 until 1700, 970330, violation of UCMJ Article 87: Through neglect miss the movement of the USS Kearsarge for the SOCEX with which he was required in the course of the move.
         Award: Forfeiture of $505.00 pay per month for 2 months, restriction and extra duty for 45 days, reduction to E-2. Not appealed.
970708:  Counseled for deficiencies in performance and conduct. [Failure to conform to prescribed Marine Corps height and weight standards.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
980408:  Counseled for deficiencies in performance and conduct. [Financial responsibilities, specifically Applicant wrote two checks and did not maintain sufficient funds to cover it in his checking account.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
980414:  NJP for violation of UCMJ, Article 121: On or about 0900, 980331, did steal (3) packs of cigarettes, the property of LCpl C. M. E_.
         Award: Forfeiture of $463.00 pay per month for 2 months (suspended for 6 months), restriction and extra duty for 45 days, reduction to E-1. Not appealed.

 980416:  Counseled for deficiencies in performance and conduct. [Pattern of misconduct, specifically continuous violation of the UCMJ.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

980714:  Counseled for deficiencies in performance and conduct. [Unsatisfactory performance, specifically, inappropriate and unacceptable conduct displayed by leaving his assigned post as a member of the Battalion Supply Roving Patrol without authority and going to his BEQ room.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

980929:  Counseled for deficiencies in performance and conduct. [Concerning prescribed Marine Corps height and weight standards after being on Weight Control for sixteen months.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

981016:  Counseled for deficiencies in performance and conduct. [Failure to conform to Marine Corps weight standards and pattern of misconduct, specifically violations of the UCMJ which resulted in NJP and/or counseling entries.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

990120:  NJP for violation of UCMJ, Article 86: Did on or about 0700, 990106, without authority, absent himself from his appointed place of duty to wit: A Company, 1 st Battalion, 1 st Marines, 2d Marine Division, and did remain so absent until 2200, 990111.
         Award: Forfeiture of $479.00 pay per month for 2 months, restriction and extra duty for 45 days. No indication of appeal in the record.
000327:  Pretrial confinement from 000327 to 000527 (43 days) credited toward the period of confinement.
       
000509:  Special Court-Martial.
          Charge I: violation of the UCMJ, Article 121 (3 Specifications):
          Specification 1: Did on board Marine Corp Base, Camp Lejeune, North Carolina, between on or about 991201 and on or about 991209, steal two (2) personal checks, of some value, the property of LCpl B_ J. S_, U.S. Marine Corps; Specification 2: Did, at Food Lion, located in Jacksonville, North Carolina, on or about 991208, steal U.S. Currency, of a value of about $150.00, the property of LCpl B_ J. S_, U.S. Marine Corps; Specification 3: Did, at Navy Federal Credit Union, located in Jacksonville, North Carolina, on or about 991209, steal U.S. Currency, of a value of about $250.00, the property of LCpl B_ J. S_, U.S. Marine Corps. Charge II: violation of the UCMJ, Article 123 (2 Specifications): Specification 1: Did, at or near, Jacksonville, North Carolina, on divers occasions, between on or about 991208 and on or about 991209, with intent to defraud, falsely make the signature of LCpl B_ J. S_, U.S. Marine Corps, as an endorsement to certain checks in the following words and figures, to wit: Check # 124, dated 991208, Payee J_ W. D_, Amount $150.00 and Check # 122, dated 991209, Payee J_ W. D_, Amount $250.00; Specification 2: Did, at or near, Jacksonville, North Carolina, on divers occasions, between on or about 991208 and on or about 991209, with intent to defraud, utter certain checks, to wit: Check # 124, dated 991208, Payee J_ W. D_, Amount $150.00 and Check # 122, dated 991209, Payee J_ W. D_, Amount $250.00. Additional Charge I: violation of the UCMJ, Article 121: (2 Specifications): Specification 1: Did, on board Marine Corp Base, Camp Lejeune, North Carolina, on divers occasion, between on or about 000221 and on or about 000310, steal U.S. Currency, of a value of about $715.00, the property of Marine Corps Community Services; Specifications 2: Did, on board Marine Corp Base, Camp Lejeune, North Carolina, on divers occasion, between on or about 000320 and on or about 000323, steal U.S. Currency, of a value of about $325.00, the property of Marine Corps Community Services. Additional Charge II: violation of the UCMJ, Article 123: (3 Specifications): Specification 1: Did, at or near, Jacksonville, North Carolina, on divers occasions, between on or about 000221 and on or about 000310, with intent to defraud, falsely make the signature of Cpl A_ W. N_, U.S. Marine Corps, to certain checks in the following words and figures, to wit: Check # 173, dated 000221, Payee : J_ W. D_, Amount $50.00; Check # 168, dated 000222, Payee : J_ W. D_, Amount $115.00; Check # 151, dated 000223, Payee : J_ W. D_, Amount $50.00; Check # 153, dated 000224, Payee : J_ W. D_, Amount $200.00; Check # 182, dated 000224, Payee : J_ W. D_, Amount $100.00; Check # 180, dated 000310, Payee : J_ W. D_, Amount $200.00; Specification 2: Did, at or near, Jacksonville, North Carolina, on divers occasions, between on or about 000320 and on or about 000323, with intent to defraud, falsely make the signature of Hospitalman M_ R. B_, U.S. Navy, to certain checks in the following words and figures, to wit: Check #156, dated 000320, Payee: J_ W. D_, Amount $75.00; Check #155, dated 000323, Payee: J_ W. D_, Amount $50.00; Check #145, dated 000323, Payee: J_ W. D_, Amount $200.00; Specification 3: Did, at or near, Jacksonville, North Carolina, on divers occasions, between on or about 000221 and on or about 000323, with intent to defraud, utter certain checks in the following words and figures, to wit: Check #173, dated 000221, Payee: J_ W. D_, Amount $50.00; Check #168, dated 000222, Payee: J_ W. D_, Amount $115.00; Check #151, dated 000223, Payee: J_ W. D_, Amount $50.00; Check #153, dated 000224, Payee: J_ W. D_, Amount $200.00; Check #182, dated 000224, Payee: J_ W. D_, Amount $100.00; Check #180, dated 000310, Payee: J_ W. D_, Amount $100.00; Check #156, dated 000320, Payee: J_ W. D_, Amount $75.00; Check #155, dated 000323, Payee: J_ W. D_, Amount $50.00; Check #145, dated 000323, Payee: J_ W. D_, Amount $200.00.
 Findings: to Charge I and specification 1 thereunder, withdrawn and dismissed, specifications 2 and 3 thereunder, guilty. To Charge II and specifications 1 and 2 thereunder, withdrawn and dismissed. To Additional Charge I and specifications 1 and 2 thereunder; guilty. To Additional Charge II and specification 1, 2 and 3 thereunder, withdrawn and dismissed.
          Sentence: Confinement for 90 days, forfeiture of $600.00 pay per month for 3 months, and a bad conduct discharge.
          CA 001023: Sentence approved and ordered executed except for the BCD.
        
000601:  To appellate leave.
010214:  NC&PB denied clemency and restoration [Extracted from NC&PB computer system].
010430:  NMCCMR: Affirmed findings and sentence.

 010723:  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 010723 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.
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. Relief not warranted.
The Applicant 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. Representation at a personal appearance hearing is recommended but not required.



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 86, unauthorized absence; Article 121, larceny; Article 123, forgery.
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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