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NAVY | DRB | 2004 Marine | MD04-01178
Original file (MD04-01178.rtf) Auto-classification: Denied


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

ex-Pvt, USMC
Docket No. MD04-01178

Applicant’s Request
The application for discharge review was received on 20040715. 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 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 20041229. 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:

 1. “*Received Good-Conduct Medal.
         *Received “National Defense Ribbon”.
         *Received meritorious promotion.
         *Excellent P.F.T. scores.
         *I was close to finishing my enlistment. It was unfair to give me the type of discharge I received.
         *Marriage & Financial Problems got in the way of my serving!
         *Going through a divorce impaired my ability to serve!
         *The punishment I received was to harsh for todays standards.
         *I never received help, when I requested it.
         *My discharge characterization was for good of service, which does not fit reason for court-martial. One dirty urinalysis.
         *Other Marines did not receive stiff punishment that I received for dirty urinalysis.
         *I received double-jeopardy punishment for bounced checks in my special- court martial. I had paid restitution and a fine prior to court martial.
         *My discharge was inequitable because it was based on one isolated incident in roughly 36 months of service.”
        
        

Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant’s DD Form 214
Applicant’s DD From 215

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
         Inactive: USMCR(J)                880615 - 890611  COG

 Period of Service Under Review :
Date of Enlistment: 890612               Date of Discharge: 930731

 Length of Service (years, months, days):

         Active: 04 01 20                  [Does not exclude lost time]
         Inactive: None

 Age at Entry: 18                          Years Contracted: 5

Education Level: 12                        AFQT: 77

 Highest Rank: LCpl                         MOS: 6521

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 4.1 (6)                       Conduct: 4.0 (6)

 Military Decorations: None

 Unit/Campaign/Service Awards: NDSM, LoA (2)

 Days of Unauthorized Absence: None

 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 :

880613:  Initial enlistment contract documents admission of pre-service marijuana experimentation. Enlistment waiver granted. Applicant briefed upon and certified understanding of Marine Corps policy concerning illegal use of drugs.
900830:  Counseled for deficiencies in performance and conduct. [Alcohol related incident: DWI.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

910122:  Counseled for deficiencies in performance and conduct. [Failure to report to work on time.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

910122:  Counseled for deficiencies in performance and conduct. [1. Repeated instances of unauthorized absence. 2. Failure to maintain a neat personal appearance. 3. Improper maintenance of uniform.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

910329:  Counseled for deficiencies in performance and conduct. [Requirement to properly physically and financially support your family.]

911023:  Summary Court-Martial.
         Charge I: Violation of the UCMJ, Article 121.
         Specification 1: Steal one cassette tape carrying case containing 91 cassette tapes of a value of about $910.00.
         Specification 2: Steal one Mr. Coffee drip coffee maker of a value of less than $100.00.
         Charge II: Violation of the UCMJ, Article 130.
         Specification: Unlawfully enter barracks room with intent to commit larceny.
         Finding: Chg. I: G; Spec 1, Chg 1: G-except words “steal” substituting “wrongful appropriation,” Spec 2, Chg I: G; Chg II: G; Chg II: G-except words “Viol Art. 130” substituting “Viol Art. 134”
         Sentence: RIR E-1, 30 das confinement with hard labor.
          CA action 911212: Sentence approved and ordered executed.

920604:  Counseled for deficiencies in performance and conduct. [Alcohol related incident: DWI.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
920527:  Special Court-Martial.
         Charge I: Violation of the UCMJ, Article 86: Did at 0615 15 Feb 1992 without authority fail to go at the time prescribed to his appointed place of duty.
         Charge II: Violation of the UCMJ, Article 112a: Did between 3 and 12 Feb 1992 wrongfully use marijuana and cocaine.
         Specification:
         Findings: To Charge I and Charge II: Guilty.
         Sentence: Confinement for 90 days and a bad conduct discharge.
         CA 921013: Sentence approved and ordered executed except for the BCD.
        

920602:  Applicant waived clemency review.

920616:  Brig Psychologist finds no psychiatric diagnosis.

920812:  To appellate leave.

930126:  NMCCMR: Affirmed findings and sentence.

930426:  MCARA: Appellate review complete, no application having been received.

930623:  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 19930731 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. Clemency is an act of leniency that reduces the severity of the punishment imposed. In response to the Applicant’s conduct prior to committing the offenses which led to his discharge, the Applicant’s personal problems during his enlistment and the equitability and propriety of his discharge, after a thorough review of the record and issues submitted, the Board determined clemency was not warranted and the sentence awarded the Applicant at his court-martial was appropriate for the offense he committed. 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. 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 112a, wrongful use of a controlled substance.
C. Secretary of the Navy Instruction 5420.174D of 22 December 2004 Naval Discharge Review Board (NDRB) Procedures and Standards, Part II, 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 “ http://Boards.law.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:

                  Secretary of the Navy    Council of Review Boards
                   Attn: Naval Discharge Review Board
                   720 Kennon Street SE Rm 309
                  Washington Navy Yard DC 20374-5023

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