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NAVY | DRB | 2004 Marine | MD04-00548
Original file (MD04-00548.rtf) Auto-classification: Denied


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


ex-PVT, USMC
Docket No. MD04-00548

Applicant’s Request
The application for discharge review was received on 20040212. 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/COURT-MARTIAL, 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 am requesting an upgrade, because I feel that I have done my time for my actions. I have finished college and am looking for further direction in a government job.”

Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Copy of DD Form 214
 B.S. diploma from Hamilton Technical dtd 15 May 03
 College Transcripts (2 pages)

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
          Inactive: USMCR(J)                950307 - 950319  COG
Period of Service Under Review :
Date of Enlistment: 950320               Date of Discharge: 970722

 Length of Service (years, months, days):
         Active: 02 04 02
          Inactive: None
Age at Entry: 22                          Years Contracted: 4

Education Level: 12                        AFQT: 52
Highest Rank: PFC                          MOS: 0313

Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 4.3 (2)                       Conduct: 4.3 (2)
Military Decorations: None

 Unit/Campaign/Service Awards: NDSM

Days of Unauthorized Absence: 4

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 :

951031:  NJP for violation of UCMJ, Article 86: unauthorized absence. Violation of UCMJ Article 92: disobey a lawful order.
         Award: Forfeiture of $223 per month for 1 month(s), restriction and extra duty for 14 days, forf. sups 6 mos. Not appealed.
951127:  Counseled for deficiencies in performance and conduct. [Violation Article 86.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
         
960419:  Special Court-Martial.
         Charge I: violation of the UCMJ, Article 107:
          Specification 1: make to CI H_ of CID a false statement.
         Charge II: violation of the UCMJ, Article 123a.
         Specification 1: wrongfully and unlawfully utter certain checks.
         Charge III: violation of UCMJ, Article 134.
         Specification 1: falsely pretend to AT&T that [Applicant] was auth to bill charges.
         Add Charge I: violation of UCMJ, Article 123a.
         Specification 1: wrongfully and unlawfully utter certain checks.
         Add Charge II: violation of UCMJ, Article 86.
         Specification 1: absent himself on or about 7 Apr 96.
         Findings: to all charges and specifications thereunder, guilty.
         Sentence: Fine of $583.00 for 3 mos., 90 das confinement, reduction to E-1, and a bad conduct discharge.
         CA 960806: Sentence approved and ordered executed except for the BCD.
        
970116:  NMCCMR: Affirmed findings and sentence.

970711:  COMA: Petition for review denied.

970722:  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 19970722 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).

Issue 1. In response to the Applicant’s issue, 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. 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 123a, checks, intent to deceive.
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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