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NAVY | DRB | 2004 Marine | MD04-00547
Original file (MD04-00547.rtf) Auto-classification: Denied


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

ex-PVT, USMC
Docket No. MD04-00547

Applicant’s Request
The application for discharge review was received on 20040211. The Applicant requests the characterization of service received at the time of discharge be changed to general/under honorable conditions. The Applicant requests 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 20041001. 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

Applicant’s issues, as stated on the application:

Issue 1. “I don’t feel my discharge was totally justified. I know what I did was wrong, but I don’t feel that all of the facts and circumstances were presented during the court-martial.”

Issue 2. “There really isn’t a reason to break any law, but at the same time, there shouldn’t be reason for over kill. At the time of my discharge in 1993 there was a down size in military personell. Although I messed up my first 2 yrs. I had 3 consecutive good yrs. Including marritoris promotion boards. I had the cutting score for promotion to Sgt. which was held for a year and then kept from me upon discharge. They let me keep Cpl.

Issue 3. “My main reason for the request is that I was in Operation Desert Storm and I cannot get the post war screen test at the local VA do to my discharge status. For years everytime I see a rash or a muscle or other internal organs do anything out of the ordinary, I panic. Of course I would love to have all my benefits to help take care of my family, but the medical test is top priority. Thank you.”


Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Copy of DD Form 214
Ltr from J_H_, Homeless Veteran Reintegration Program dtd 20 Feb 2002

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
Active:          None
Inactive:        USMCR(J)                  860912 - 870715  COG
Period of Service Under Review :
Date of Enlistment: 870716               Date of Discharge: 941003

 Length of Service (years, months, days):

          Active: 07 02 17         [Does not exclude lost time]
          Inactive: None

 Age at Entry: 18                          Years Contracted: 6

Education Level: 12                        AFQT: 50

 Highest Rank: Cpl                          MOS: 1833

Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 4.3 (15)                      Conduct: 4.0 (15)

 Military Decorations: None

 Unit/Campaign/Service Awards: SSDR (2), NDSM, CAR, SASM (2), KLM, GCM, NUC, NASR

Days of Unauthorized Absence: 2

 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 :

871124:  NJP for violation of UCMJ, Article 92: Failure to obey an order/regulation.
 Awarded forfeiture of $150.00 per month for 2 months, restriction and
extra duties for 30 das. 15 das restriction/ed susp 3 mos. Not appealed.
890106:  Summary Court-Martial.
         Charge I: violation of the UCMJ, Article 91.
         Specification: Willfully disobey an order from Sgt C. U_.
         Finding: to Charge I and the specification thereunder, guilty.
         Sentence: Forfeiture of $520.00, reduced to E-2, confinement for 30 das.
          CA action 890216: Sentence approved and remaining award ordered executed.
890216:  NJP for violation of UCMJ, Article 91: Failure to obey a lawful order.
         Award: Forfeiture of $182 per month for 1 month(s), restriction and extra duty for 14 days. No indication of appeal in the record.

890421:  Counseled for deficiencies in performance and conduct. [Issuing a worthless check in the amount of $60.00 to MCX.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

890606:  NJP for violation of UCMJ, Article 86: unauthorized absence 890605-890606.
         Award: Forfeiture of $182 per month for 1 month(s), restriction and extra duty for 14 days. No indication of appeal in the record.

910820:  Counseled for deficiencies in performance and conduct. [Failure to repot to morning formation for rifle range.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

930221:  Counseled for deficiencies in performance and conduct. [Receipt of letters of indebtness by this command.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

930524:  Special Court-Martial.
         Charge I: violation of the UCMJ, Article 121
         Specification 1: Larceny of one microwave and one digital clock/radio.
         Charge II: violation of the UCMJ, Article 130
         Specification 1: Unlawfully enter the cabana with intent to commit larceny.
         Findings: to Charge I and specification 1 thereunder, guilty. To Charge II and specification thereunder, guilty.
         Sentence: Fine of $500.00, restriction for 2 months, reduction to E-1, and a bad conduct discharge, 60 das confinement.
         CA 930810: Sentence approved and ordered executed except for the BCD.

930701:  NJP for violation of UCMJ, Article 86: unauthorized absence 930622-930623.
         Award: Restriction and extra duty for 14 days, epd susp for 6 mos. Not appealed.

930701:  To appellate leave.

940428:  NMCCMR: Affirmed findings and sentence.

941003:  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 19941003 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).

Issues 1-3. In response to the Applicant’s issues, 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, the action of the NDRB is restricted to upgrades based on clemency. Clemency is an act of leniency that reduces the severity of the punishment imposed. After a thorough review of the Applicant’s record, issues submitted, and post service accomplishments, the Board determined that clemency was not warranted.

The Applicant remains eligible for a personal appearance hearing, provided an application is received, at the NDRB, within 15 years from the date of discharge. The Applicant can provide documentation to support any claims of post-service accomplishments or any other evidence related to his discharge at that time. 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 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 [ 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      
                  Washington, D.C. 20374-5023     



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