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NAVY | DRB | 2004 Marine | MD04-00132
Original file (MD04-00132.rtf) Auto-classification: Denied


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

ex-PVT, USMC
Docket No. MD04-00132

Applicant’s Request
The application for discharge review was received on 20031023. The Applicant requests the characterization of service received at the time of discharge be changed to general/under honorable conditions and the reason for the discharge be changed to general. The Applicant requests a documentary record discharge review. The Applicant listed the Veterans of Foreign Wars 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/As a result of a courts-martial (SPCM) – Other, authority: MARCORSEPMAN Par. 1105.




PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

No issues were submitted by the Applicant.

Issues submitted by Applicant’s counsel/representative ( VETERANS OF FOREIGN WARS):
Issue 1: “Applicant indicated above requested that Veterans of Foreign Wars act as counsel concerning his application. His records were reviewed on Feb 27, 2004 and the following comments are hereby submitted:

         We concur with the applicant contentions and that his discharge be upgraded.

We refer this case to the Board for their careful and compassionate consideration and request the Applicant's discharge be reviewed for upgrade to general.”

Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Copy of DD Form 214
Applicant’s ltr, undated

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: USMC              None                       HON
         Inactive: USMCR (J)               890505 - 890521  COG

 Period of Service Under Review :
Date of Enlistment: 890522               Date of Discharge: 920507

 Length of Service (years, months, days):

         Active: 02 11 16         (Lost time not included)
         Inactive: None

 Age at Entry: 20                          Years Contracted: 6

Education Level: 12                        AFQT: 70

 Highest Rank: LCpl

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 3.9 (3)                       Conduct: 3.5 (3)

 Military Decorations: None

 Unit/Campaign/Service Awards: SSDR, NDSM

Days of Unauthorized Absence: 910103 – 910107 (04 Days)

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

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

 Chronological Listing of Significant Service Events :

900212:  NJP for violation of UCMJ, Article 92: did on or about 0201, 2 Feb 90, willfully violate the Bn Cmdr’s order to secure liberty and be inside BEQ 2820 by 2400.
Awd forf of $196.00 per month for 1 month and 14 days restriction. Not appealed.

910131:  Special Court-Martial.
         Charge I: violation of the UCMJ, Article 86: did on or about 3 Jan 91 absent himself from his unit and did remain so on or about 7 Jan 91.
         Charge II: violation of the UCMJ, Article 121: did on or about 24 Sep 90 steal one (1) Fisher, video cassette recorder valued at or more than $100.00.
         Findings: to Charge I, guilty. To Charge II, guilty.
         Sentence: Awd sixty (60) days confinement, forf of $200.00 for 2 months, red to PVT/E-1, and a bad conduct discharge.
         CA 910416: Sentence approved and ordered executed except for the BCD.

910131:  To confinement, Sentence of SPCM.

 910320:  From confinement, to duty.
910909:  Special Court-Martial.
         Charge I: violation of the UCMJ, Article 86 (5 Specifications):
         Specification 1: failed to go to appointed place of duty on 8 July 1991.
         Specification 2: failed to go to appointed place of duty on 8 July 1991. Specification 3: failed to go to appointed place of duty on 10 July 1991.
         Specification 4: failed to go to appointed place of duty on 10 July 1991.
         Specification 5: failed to go to appointed place of duty on 11 July 1991.
         Charge II: violation of the UCMJ, Article 91:
         Specification: willfully disobey a noncommissioned officer on 27 June 1991.
         Charge III: violation of the UCMJ, Article 92 (2 Specifications):
         Specification 1: failed to obey a lawful general order on 5 May 1991, by wrongfully operating a motor vehicle without a valid operator’s license.
         Specification 2: failed to obey a lawful general order on 18 May 1991, by wrongfully leaving the confines of Camp Hansen.
 Charge IV: violation of the UCMJ, Article 123a (2 Specifications):
          Specifications 1 & 2: Making and uttering share drafts, with the intent to defraud, totaling $2,100.00 between 17 June 1990 and 14 January 1991.
         Charge V: violation of the UCMJ, Article 112a:
         Specification: wrongfully use marijuana during 1 January 1991 and 31 January 1991.
 Findings: to Charge I and specification 1 thereunder, guilty. To specification 2 under Charge I, guilty. To specification 3 under Charge I, guilty. To specification 4 under Charge I, guilty. To specification 5 under Charge I, guilty. To Charge II and the specification thereunder, guilty. To Charge III and specification 1 thereunder, guilty. To specification 2 under Charge III, guilty. To Charge IV and specification 1 thereunder, guilty. To specification 2 under Charge IV, guilty. To Charge V and the specification thereunder, guilty.
Sentence: Bad conduct discharge, forf of $500.00 per month for 5 months, and confinement for 5 months.
          CA 911115: Sentence approved and ordered executed except for the BCD.

910909:  To confinement, Sentence of SPCM.

911003:  From confinement, to duty.

911004:  Applicant waived right to have case reviewed by NC&PB.

911127:  To appellate leave.

000000:  NMCCMR: Affirmed findings and sentence.

920102:  Applicant was served with a copy of the U. S. Navy-Marine Court of Military Review decision by certified mail. Sixty days elapsed without a petition being filed.

920416:  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 19920507 with a bad conduct discharge which was the sentence adjudged by a properly convened special court-martial. That 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).

The Applicant introduced no decisional issues for consideration by the Board.

 Issue 1: In response to the Representative’s issue and for the edification of the Applicant, relevant and material facts 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 on clemency (B, art IV). Clemency is an act of leniency that reduces the severity of the punishment imposed. After a thorough review of the Applicant’s record, the request for review and the issue submitted, the Board determined that clemency was not warranted.

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 evidence of record did not contain sufficient mitigating or extenuating factors to offset the seriousness of the offenses for which the discharge was awarded. In addition, the reason for discharge, convicted by special court-martial, is most appropriate. Relief denied.










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 P1900.16D), effective 27 Jun 89 until 17 Aug 95.

 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, Absence without leave ; Article 91, Insubordinate conduct ; Article 92, Failure to obey order or regulation ; Article 112a, Wrongful use, possession, etc., of controlled substances ; Article 121, Wrongful appropriation ; Article 123a, Making, drawing, or uttering check, draft, or order without sufficient 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.

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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