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NAVY | DRB | 2004 Marine | MD04-00751
Original file (MD04-00751.rtf) Auto-classification: Denied


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

ex-Pvt, USMC
Docket No. MD04-00751

Applicant’s Request
The application for discharge review was received on 20040330. The Applicant requests the characterization of service received at the time of discharge be changed to honorable and the reason for discharge be changed to “convenience of the Government.” 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 20041008. 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 and reason for 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.


Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Copy of DD Form 214
Letter of Character Reference from Dr. S_ M_ V_, dtd December 4, 2003
Letter from J_ R_, dtd January 28, 2004
Copy of Pro-Con marks
Copy of page from Applicant Service Record Book

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: USMC              None
         Inactive: USMCR(J)                870319 - 870722  COG

 Period of Service Under Review :
Date of Enlistment: 870723               Date of Discharge: 930715

 Length of Service (years, months, days):

         Active: 05 11 15
         Inactive: None

 Age at Entry: 18                          Years Contracted: 4

Education Level: 12                        AFQT: 33

 Highest Rank: LCPL                MOS: 0811

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 4.5 (9)                       Conduct: 3.9 (10)

 Military Decorations: None

 Unit/Campaign/Service Awards: NDSM

Days of Unauthorized Absence: 254

 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 :

890628:  Applicant UA 890616 – 890628, 13 days. (Extracted from Applicant’s DD-214).

890905:  Applicant UA 890905 – 890905, 1 day. (Extracted from Applicant’s DD-214).

891004:  Applicant UA 890907 – 891004, 28 days. (Extracted from Applicant’s DD-214).
900708:  Applicant UA 900629 – 900708, 10 days. (Extracted from Applicant’s DD-214).
900909:  Applicant declared a deserter on 900909 having been an unauthorized absentee since 0731,900810 from 3rdBn, 10thMar, 2dMarDiv, Camp Lejeune, NC.

910301:  Applicant apprehended by civil authorities on 930101 (0736) at Erie, PA. Returned to military control 930101 (0815). Delivered to H&Sco, HQBN, 2dMARDIV, FMF, Camp Lejeune, NC.

911106:  Special Court-Martial.
         Charge I: violation of the UCMJ, Article 86 (1 Specification):
         Specification 1: Absent himself 10 Aug 1990 until apprehension on 1 Mar 1991.
         Charge II: violation of the UCMJ, Article 121 (1 Specification):
         Specification 1: Wrongfully appropriated a check valued at $242.00, props Cpl C_ J_
         Charge III: violation of the UCMJ, Article 123 (2 Specifications):
         Specification 1: Falsely made a signature of C_J_, 256-21-3499.
         Specification 2: Intent to defraud, falsely utter check.
 Findings: to Charge I and specification 1 thereunder, guilty. To Charge II and specification 1 thereunder, guilty. To Charge III and specification 1 thereunder, withdrawn. To Charge III and specification 2 thereunder, guilty.
         Sentence: To be discharged with a BCD, to be confined for 5 months; and to forf $500.00 per month for 5 months; to be red to Pvt/E-1.
         CA 920324: Sentence approved and ordered executed except for the BCD.

911106:  To confinement, Sentence of SPCM.

911212:  From confinement, to duty.

911231:  To appellate leave.

921113:  NMCCMR: Affirmed findings and sentence.

930508:  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 19930715 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.

 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.

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 additional documentation to support any claims of post-service accomplishments 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 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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