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USMC | DRB | 2003_Marine | MD03-01485
Original file (MD03-01485.rtf) Auto-classification: Denied


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

ex-Pvt, USMC
Docket No. MD03-01485

Applicant’s Request
The application for discharge review was received on 20030910. The Applicant requests the characterization of service received at the time of discharge be changed to honorable and the reason for the discharge be changed to “Convenience of the Gov., Administer. Sep.” The Applicant requests a documentary record 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 20040715. After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, no impropriety or inequity in the characterization of the Applicant’s service was considered by the NDRB. The Board’s vote was unanimous that the character and reason for discharge shall not change. The discharge shall remain: UNDER HONORABLE CONDITIONS (GENERAL)/ Convenience of the Government, Review Action, Punitive discharge set aside, suspended, remitted or disapproved (without administrative discharge board) , authority: MARCORSEPMAN Par. 6203.4.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

 Applicant’s issues, as stated on the application:

1. “Narrative reason for separation – Punitive Discharge was set aside. Changed to Administrative Separation”

2. “Name of record – Mispelled. Correction Applicant's name.”
Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Decision of Appellate Review Board (Navy-Marine Corps) (including admin discharge package) (20 pages)

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
         Inactive: USMCR(J)                910614 - 910721  COG

 Period of Service Under Review :
Date of Enlistment: 910722               Date of Discharge: 940624

 Length of Service (years, months, days):

         Active: 02 11 03 (Doesn’t exclude confinement time or appellate leave.)
         Inactive: None

 Age at Entry: 18                          Years Contracted: 5

 Education Level: 13                        AFQT: 93

 Highest Rank: PFC

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 4.3 (2)              Conduct: 4.2 (2)

 Military Decorations: None

 Unit/Campaign/Service Awards: Rifle Sharpshooter Badge, NDSM

Days of Unauthorized Absence: None

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

UNDER HONORABLE CONDITIONS (GENERAL)/ Convenience of the Government, Review Action, Punitive discharge set aside, suspended, remitted or disapproved (without administrative discharge board) , authority: MARCORSEPMAN Par. 6203.4.

 Chronological Listing of Significant Service Events :

920320:  Special Court-Martial.
         Charge I: violation of the UCMJ, Article 92 (2 Specs):
         Specification 1: On or about 12 Feb 92, violate a lawful general order, to wit: Marine Corps Base Order 5500.1E dtd 20 Mar 85, by wrongfully possessing an unregistered .9mm pistol in his BEQ room.
         Specification 2: On or about 14 Feb 92, violate a lawful general order, to wit: Marine Corps Base Order 5500.1E, dtd 20 Mar 85, by wrongfully possessing an unregistered .12 gauge shotgun, an unregistered 9mm pistol, a lockblade knife with a blade in excess of three inches, nineteen .12 gauge shotgun shells, and fourteen 9mm bullets.
         Charge II: violation of the UCMJ, Article 121:
         Specification: On or about 23 Jan 92, wrongfully appropriate a Sharp portable stereo/compact disc player, twenty-two compact discs, one compact disc carrier and one set of KOSS headphones, of a value in excess of $100.00, the property of Private First Class D_ P.J. M_, USMC.
         Findings: to Charge I and specifications 1 and 2, thereunder - guilty.
To Charge II and specification thereunder - guilty.
         Sentence: 6 months confinement, forfeiture of $450.00 pay per month for six months, reduction to E-1, and a bad conduct discharge.
         CA 920612: Sentence approved and ordered executed except for the BCD, but that part of the sentence extending to confinement in excess 120 days is suspended for a period of 12 months from the date the accused is released from confinement, at which time, unless the suspension is sooner vacated, the suspended part of the sentence shall be remitted without further action.
         SA 940204: BCD set aside.

920320:  To confinement, sentence of SPCM.

920522:  From confinement, to duty. [EXTRACTED FROM DD FORM 214.]

920623:  To appellate leave.

930825:  NMCCMR: Unable to affirm the BCD and returned case to the Judge Advocate General who may order a rehearing on Specifications 1 and 2 of Charge I and the sentence.

940204:  SSPCMO: Amended the findings of guilty to Charge I and the specifications thereunder are dismissed and the findings of guilty of Charge II and its single specification are affirmed. The sentence is set side. A sentence of no punishment is approved. Article 71c, UCMJ, having been complied with, all rights, privileges and property of which the accused has been deprived by virtue of the sentence set aside, will be restored.

940502:  Applicant notified of intended recommendation for discharge under honorable conditions (general) by reason of convenience of the government due to review action.
Undated:         Applicant advised of his rights and having consulted with counsel certified under UCMJ Article 27B, elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation.

940518:  Commanding Officer, 2 nd Assault Amphibian Battalion, 2d MARDIV, MARFORLANT, Camp Lejeune, recommended discharge under honorable conditions (general) by reason of convenience of the government due to review action.

940622:  SJA review determined the case sufficient in law and fact.

940624:  GCMCA [CG, 2d MARDIV, MARFORLANT, Camp Lejeune, NC] directed the Applicant's discharge under honorable conditions (general) by reason of convenience of the government due to review action.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged in absentia on 19940624 under honorable conditions (general) due to Convenience of the Government, Review Action, Punitive discharge set aside, suspended, remitted or disapproved (without administrative discharge board) (A). The Board presumed regularity in the conduct of governmental affairs (B). 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 (C and D).

Issues 1 and 2. As noted on page one, the Board has recommended that the Applicant’s DD Form 214 be changed to correct the administrative errors and reflect the Applicant’s correct name and narrative reason for separation. The Applicant was properly and equitably processed for discharge because his bad conduct discharge was set aside. No narrative reason other than “Convenience of the Government, Review Action, Punitive discharge set aside, suspended, remitted or disapproved (without administrative discharge board)” more clearly describes the circumstances surrounding the Applicant’s processing for administrative separation.

 When a Marine’s service has been honest and faithful, it is appropriate to characterize that service as honorable. A characterization of service of under honorable conditions (general) is warranted when significant negative aspects of a member's conduct or performance of duty outweigh the positive aspects of the member's military record. T he Applicant’s service was marred by award of a special court-martial. Though the Applicant’s bad conduct discharge was set aside, the Applicant was still found guilty of larceny. The Applicant’s conduct, which forms the primary basis for determining the character of his service, reflects his disobedience of the orders and directives which regulate good order and discipline in the naval service, and falls short of that required for an honorable characterization of service. An upgrade to honorable is inappropriate. It must be noted that most Marines serve honorably and well and therefore earn honorable discharges. In fairness to those Marines, commanders and separation authorities are tasked to ensure that undeserving Marines receive no higher characterization than is due. Relief denied.

The Applicant’s discharge characterization accurately reflects his service to his country. Normally, to permit relief, an error or inequity must have existed during the period of enlistment in question. No such error or inequity is evident 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. Marine Corps Separation and Retirement Manual, ( MCO P1900.16D, effective 890627 until 950817), paragraph 6203, CONVENIENCE OF THE GOVERNMENT .

B. 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.

C. 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.

D. 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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