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NAVY | DRB | 2004 Marine | MD04-00944
Original file (MD04-00944.rtf) Auto-classification: Denied


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

ex-Pvt, USMC
Docket No. MD04-00944

Applicant’s Request
The application for discharge review was received on 20040518. The Applicant requests the characterization of service received at the time of discharge be changed to other than honorable. The Applicant requests a documentary record 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 20041103. 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:

 “1. I have written to request a second chance in life. I have been out of the Corps for over 4 years now, and have been trying to establish myself in today’s society. I have been applying to various police forces through out the United States. I have no doubt in my mind that I can succeed, but I want to reach the highest peak in life with the help of a better discharge that was given me. I’m not asking because I want benefits or to be able to use the G.I. Bill. It’s for the explanation to my children when they grow older. I just want to be a better man on paper and not have this shadow follow me through my years. I was 20 years old when this all happened and wasn’t mature enough to realize the consequences. I’m 26 now and have beaten my self up mentally everyday since then. I’m not demanding nor am I begging. All I’m asking is to please review my files and see if I was treated too harshly and if I am able to upgrade. If the discharge still stands then I will be satisfied knowing that I gave it my best. Please have an open heart while reviewing my case and I thank you for taking the time from your schedule .”
Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Copy of DD Form 214
Letter from Applicant’s father
Letter from J_ P_, TSGT (Ret.)
Letter from J_ B_, Sr., CSM (Ret.)

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
         Inactive: USMCR(J)                960124 - 960902  COG

 Period of Service Under Review :
Date of Enlistment: 960903               Date of Discharge: 000420

 Length of Service (years, months, days):

         Active: 03 07 18
         Inactive: None

 Age at Entry: 19                          Years Contracted: 4

Education Level: 12                        AFQT: 47

 Highest Rank: PFC                          MOS: 2512

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 3.7 (7)                       Conduct: 3.5 (7)

 Military Decorations: None

 Unit/Campaign/Service Awards: MM

Days of Unauthorized Absence: 45

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 :

970717:  NJP for violation of UCMJ, Article 86: UA from 3d Marines from 970502 to 970617 by failing to report to this command.
         Award: Forfeiture of $450 per month for 2 months, restriction and extra duty for 45 days, reduction to E-1. No indication of appeal in the record.
970724:  Counseled for deficiencies in performance and conduct. [Recent NJP.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

971112:  Counseled for deficiencies in performance and conduct. [Insufficient funds for numerous checks amounting to $1170.62.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

980226:  Summary Court-Martial.
         Charge I: violation of the UCMJ, Article 123a.
         15 Specifications: Unlawfully utter certain checks knowing that he did not have sufficient funds (total amount not found).
         Finding: to Charge I and the specifications thereunder, guilty.
         Sentence: Confinement for 30 days.
         CA action 980311: Sentence approved and ordered executed.
        
990121:  Special Court-Martial.
         Charge I: violation of the UCMJ, Article 123a.
         6 Specifications: Unlawfully utter certain checks knowing that he did not have sufficient funds (totaling $1190.00).
         Findings: to Charge I and specifications thereunder, not guilty; but guilty of lesser included offense of violation of Article 134, dishonorable failure to maintain sufficient funds.
Sentence: Fine of $1000.00, forfeiture of $500.00 for two months, confinement for 60 days, reduction to E-1, and a bad conduct discharge.
          CA action: 990511. Sentence approved and ordered executed except for the BCD and the fine of $1000.00 is suspended for 12 months.

990506:  To appellate leave.

 991230:  NMCCMR: Affirmed findings and sentence.
000420:  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 20000420 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. With respect to a discharge adjudged by a court-martial case, the action of the NDRB is restricted to upgrades based on clemency (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 NDRB found the Applicant’s service record absent of any mitigating or extenuating factors sufficient to offset the seriousness of the offenses for which the discharge was awarded. Relief denied.
The Applicant is reminded that he remains eligible for a personal appearance hearing, provided an application is received at the NDRB within 15 years from the date of his 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, unlawfully utter certain checks knowing that he did not have sufficient funds; and Article 134, dishonorable failure to maintain 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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