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NAVY | DRB | 2004 Marine | MD04-00061

Original file (MD04-00061.rtf) Auto-classification: Denied

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

ex-PVT, USMC
Docket No. MD04-00061

Applicant’s Request

The application for discharge review was received on 20031008. The Applicant requests the characterization of service received at the time of discharge be changed to honorable. The Applicant requests a documentary record review. The Applicant listed the American Legion as his representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20040628. 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 discovered by the NDRB. 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 stated

Issues 1. When the offense occurred, I had a room mate brought in clothes that was stolen and when I became aware of what happened, I reported what was going on. Due to being in the same room, I was charged with the same offense even though I did not know what was happening. I believe it was unfair that I was charged with the same offense.

I pulled time in the brig and then went back to active duty until I was discharged. The USMC found out I should have been discharged and they let me go with a BCD. Attached are letters from my previous supervisors in the service stating they did not want to see me be discharged.”

Additional issues submitted by Applicant’s counsel/representative (AMERICAN LEGION):

2. “Equity Issue: Based on our review of the evidentiary record and in accordance with 10 USC 874 (b) (UCMJ, Article 74) and SECNAVINST 5420.174C, enclosure (1), paragraphs 2.24 and 9.3, we request on behalf of this former member the Board’s clemency relief with up-grade of his characterization of service on the basis of his post-service conduct.

In accordance with 32 C.F.R., section 724.166; SECNAVINST 5420.174C, enclosure (1), paragraph 1.16, The American Legion submits to the Naval Discharge Review Board (NDRB or Board) the following statement in support of this Applicant’s petition.

Our review of the service record reflects that this Applicant had satisfactory overall PRO/CON markings of 4.3/4.2 and was issued the NDSM, 3 COC and MUC. He was convicted by SPCM on 960228 for VUCMJ, Arts. 80, 81 (2 specs), 121 (3 specs), 123 (3 specs). The convening authority approved findings and sentence on 961022. Following NMCCA review, which affirmed the SPCM decision 971223, he was separated with a Bad Conduct Discharge as a result of the court-martial conviction as authorized by MARCORSEPMAN, Par. 1005.

Essentially, as noted on DD Form 293, this Applicant contends that he was innocent of the charges and that the violations were his roommate’s doings. In addition to copies of his SRB, he has submitted a Certificate of Competency issued 001018 in support of his positive post-service conduct for the Board’s consideration.

The American Legion’s express purpose in providing this statement and any other submittals or evidence filed is to assist and support this former member in resolving any improprieties or inequities in the character and basis for discharge. Moreover, we rest assured that the NDRB’s final decision will reflect sound equitable principles consistent in law, regulation, policy and discretion as promulgated by title 10 U.S.C., section 1553, and set forth in 32 C.F.R., part 724; SECNAVINST 5420.174C, enclosure (1).

This case is now respectfully submitted for deliberation and disposition.”

Documentation

In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:

Copy of DD Form 214
Character reference, dtd 6 APRIL 96
Applicant’s statement, dtd 18 Dec 97
Character reference, dtd 4 APR 96
Character reference, dtd 10 Mar 98
Character reference, dtd 5April
Certificate of Commendation, dtd 30 Oct 96
Commanding General’s Commendation, dtd 22 July 97
Certificate of Competency from Palomar Community College District

PART II - SUMMARY OF SERVICE

Prior Service (component, dates of service, type of discharge):

         Active: USMC              None                       HON
         Inactive: USMCR (J)               940105 - 940613 COG

Period of Service Under Review :

Date of Enlistment: 940614               Date of Discharge: 980424

Length of Service (years, months, days):

         Active: 03 07 03 (Includes lost time)
         Inactive: None

Age at Entry: 18                          Years Contracted: 4

Education Level: 12                        AFQT: 33
Highest Rank: LCpl Final Enlisted Performance Evaluation Averages (number of marks): Proficiency: 4.3 (7)                   Conduct: 4.2 (7) Military Decorations: CertCom (x3) Unit/Campaign/Service Awards: NCSM, MUC 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 : 960228:       Special Court-Martial.            Charge I: violation of the UCMJ, Article 80:              Specification: Did attempt to steal clothing, of some value, the property of
Robinsons-May Department store.Charge II: violation of the UCMJ, Article 81 (2 Specifications):
Specification 1: On 950907 conspire with PFC K_ to commit larceny.Specification 2: On 950903 conspire with PFC K_ to commit larceny.Charge III: violation of the UCMJ, Article 121 (5 Specifications):
Specification 1: Stole an Armed Forces Identification Card from
B. C. W_.Specification 2: Stole a checkbook from LCpl B. C. W_.Specification 3: Stole clothes of a value of $2,141.00 from Robinsons-May Department store.
Specification 4: On 950905 stole U. S. Currency of a value of $50.00 from the Marine Corps Exchange.
Specification 5: On 950906 stole U. S. Currency of a value of $50.00
from the Marine Corps Exchange.Charge I: violation of the UCMJ, Article 123:Specification 1: Falsely made the signature of LCpl S. M. R_ onto a Union bank signature card.Specification 2: On 950905 uttered a certain check with the intent to defraud.Specification 3: On 950906 uttered a certain check with the intent to defraud.Findings: To Charge I and the specification thereunder, guilty. To Charge II and specification 1 thereunder, guilty. To specification 2 under Charge II, guilty. To Charge III and the specification 1 thereunder, guilty. To
specification 2 under Charge III, guilty. To specification 3 under Charge III, guilty. To specification 4 under Charge III, dismissed. To
specification 5 under Charge III, dismissed. To Charge IV and specification 1 thereunder, guilty. To specification 2 under Charge IV, guilty. To specification 3 under Charge IV, guilty.

Sentence: Bad conduct discharge, confined for 120 days, forf of $583.00 per month for 4 months, red to PVT/E-1.CA 961022: Sentence approved and ordered executed except for the BCD.
971223: NMCCMR: Affirmed findings and sentence.980424:   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 19980424 with a bad conduct discharge which was the sentence adjudged by a properly convened special court-martial. The sentence was subsequently approved by both the convening and appellate review authorities (A and (B). The Board presumed regularity in the conduct of governmental affairs (C). Issues 1 & 2: In response to the petition for discharge review, the relevant and material details 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 tried under the Uniform Code of Military Justice, the action of the NDRB is restricted to upgrades based upon clemency only (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 records the Board reviewed showed no mitigating or extenuating factors sufficient to offset the seriousness of the offenses for which the discharge was awarded. Relief is therefore denied.

The following is provided for the edification of the Applicant. There is no law or regulation that provides for an unfavorable discharge to be upgraded based solely on the passage of time or good conduct in the civilian life subsequent to leaving the service. However, the NDRB is authorized to consider post-service factors in the recharacteriza-tion of a discharge. Outstanding post-service conduct, 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 may be considered. Verifiable proof of 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 credible evidence of a substance-free lifestyle are examples of verifiable documents that may be provided to receive consideration for relief based on post-service conduct. At this time, the Applicant has not provided sufficient documentation for the Board to consider an upgrade.

The Applicant is reminded that she remains eligible for a personal appearance hearing, provided an application is received at the NDRB within 15 years from the date of her 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 [e.g., Article 86, unauthorized absence for more than 30 days].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.

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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NAVY | DRB | 2004 Marine | MD04-00061

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