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NAVY | DRB | 2004 Marine | MD04-00323
Original file (MD04-00323.rtf) Auto-classification: Denied


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

ex-Pvt, USMC
Docket No. MD04-00323

Applicant’s Request
The application for discharge review was received on 20031210. The Applicant requests the characterization of service received at the time of discharge be changed to honorable or general/under honorable conditions. The Applicant requests a personal appearance hearing before the board in the Washington National Capital Region or a personal appearance discharge review before a traveling panel closest to New Orleans, LA. In the acknowledgement letter, the Applicant was informed that the Naval Discharge Review Board (NDRB) first conducts a documentary review prior to any personal appearance hearing. The Applicant listed the Disabled American Veterans as his representative on the DD Form 293.
Decision

A documentary discharge review was conducted in Washington, D.C. on 20040812. 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

No issues were submitted by the Applicant. He deferred to his representative.

Issues submitted by Applicant’s counsel/representative ( DISABLED AMERICAN VETERANS):
 “ Dear Chairperson:

After a review of the Former Service Members (FSM) DD Form 293 Application for the Review of Discharge or Dismissal from the Armed Forces of the United States and all evidence assembled for review, we continue to note the contention of the appellant in his request for a discharge upgrade of his current Bad Conduct Discharge (BCD) to that of Honorable, or General Under Honorable Conditions.

The FSM served on active service from November 12, 1997 to August 28, 2001 at which time he was discharged due to Court Martial.

The FSM requests equitable relief in the form of a discharge upgrade as the current discharge does not proper represent the person he is today, and relief of the current discharge would allow him to better provide for his family.

As the representative, we ask that consideration be given to equitable relief, as this is a matter that involves a determination whether a discharge should be changed under the equity standards, to include any issue upon which the applicant submits to the Board’s discretionary authority, under SECNAVIST 5420.174C.

We ask for the Board’s careful and sympathetic consideration of all the evidence of record used in rendering a fair and impartial decision. These issues do not supersede any issues previously submitted by the applicant.

 Respectfully,
 K_ L. G_
National Service Officer ”
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 to the Disabled American Veterans
Character reference, dtd 14 November 2003
Character reference, dtd undated
Character reference, dtd November 25, 2003

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
         Inactive: USMCR (J)               970222 - 971111  COG

 Period of Service Under Review :
Date of Enlistment: 971112               Date of Discharge: 010828

 Length of Service (years, months, days):

         Active: 03 03 17 (Accounts for lost time.)
         Inactive: None

 Age at Entry: 18                          Years Contracted: 4

 Education Level: 12                        AFQT: 45

 Highest Rank: PFC

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 4.1 (6)                       Conduct: 3.2 (6)

 Military Decorations: None

 Unit/Campaign/Service Awards: NUC

Days of Unauthorized Absence: (159) 19981229 - 19990607.

 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 :

980729:  NJP for violation of UCMJ, Article 107: False official statement, in that PFC B_ (Applicant) did at 3d Bn, 11 th Mar, MCACC, on or about 1500, 15 Jul 98, with intent to deceive, present an altered light-duty chit stating that SNM would be on light duty until 22 Aug 98, to which was false in the SNM’s chit originally stated a period of light duty to expire 22 Jul 98.
 Awarded forfeiture of $242.00 per month for 1 month, 14 days restriction and extra duties. Not appealed.
980929:  NJP for violation of UCMJ, Article 134: Wrongfully obtained services under false pretenses.
 Awd red to E-1, forf of $463.00 per month for 2 months, 45 days restriction and extra duties. Appealed.
981023   Appeal denied.

 981102:  Counseled for deficiencies in performance and conduct. [Minor disciplinary infractions, NJP for viol of Art 107, and viol of Art 134.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

990105:  Applicant UA (AWOL).

990128:  Applicant declared a deserter having been an unauthorized absentee since 0600, 981229 from 3 rd Bn, 11 th MAR, 1 st MARDIV.

990607:  Applicant from UA (AWOL).

990701:  Special Court-Martial.
         Charge I: violation of the UCMJ, Article 86:
         Specification: UA fr 981228 – 990607.
         Findings: to Charge I and the specification thereunder, guilty.
         Sentence: 24 days confinement, and a bad conduct discharge.
         CA 000126: Sentence approved and ordered executed except for the BCD.

990610:  To confinement, Sentence of SPCM.

990701:  From confinement, to duty.

990708:  To appellate leave.

010319:  NMCCMR: Affirmed findings and sentence.

010828:  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 20010828 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).

In response to the issue presented on the Applicant's behalf, 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 NDRB action 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 service 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 he remains eligible for a personal appearance hearing, provided an application is received at the NDRB within 15 years from the date of 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 010831.

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 107, False official statements ; and Article 134, Obtaining services under false pretenses.
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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