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NAVY | DRB | 2004 Marine | MD04-01438
Original file (MD04-01438.rtf) Auto-classification: Denied


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

ex-Pvt, USMC
Docket No. MD04-01438

Applicant’s Request
The application for discharge review was received on 20040913. The Applicant requested the characterization of service received at the time of discharge be changed to honorable. The Applicant requests a personal appearance discharge review before a traveling panel closest to San Antonio, TX. The Applicant did not list a representative on his DD Form 293. In the acknowledgement letter, the Applicant was informed the Naval Discharge Review Board (NDRB) does not travel; all hearings are held in the Washington, D.C. Metropolitan area. The NDRB also advised the Applicant that the board first conducts a documentary review prior to any personal appearance hearing.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20050118. 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. “To Whom It May Concern,

My name is R_ B_, Jr, (Applicant) and I am writing to you in hopes that you will be able to help me. I am trying to enlist into the Texas Army National Guard but am unable to get in. About four years ago I was given a bad conduct discharge from the United States Marine Corps. At that time I was charged with unauthorized absence and wrongful appropriation of an automobile. What led me into that situation had to do with problems that were arising back home. My mother had just gone through triple bypass surgery and I had become very concerned with her well being. I had gone through the chain of command and requested time to come home and check on things. I was rejected several times even after explaining to them the reasons for my requests. One night I became very depressed and took it upon my self to use a friends car without his permission. After I left base and came back it was about thirty days. I returned to base and turned myself in. The Marine whose car I took later forgave me and understood what my problems were. Through the courts I agreed to pay any damages on his vehicle as he inspected it once he got it back. At my court martial I pleaded with them not to discharge me. Even though that Marine whose car I took spoke on my behalf at my court martial and forgave me it was still no good. I was sentenced to six months in the Marine Corps base Brig and had pay suspension. I am not trying to make any excuses for what I did, I understand what I did was wrong and I am still paying for it. Since then I’ve tried to get things back together but have had some trouble. I had my share of jobs and even tried to take the police officers exam but was unable to even take the test because of my discharge. Later I signed up for the Emergency Medical Technician program but later had to drop the class also having to do with my discharge. I have tried many other things as well such as as the fire department and nursing but sadly had to stop taking these classes. Since then my wife and I have started a business of our own. We supply medical equipment to doctors around our city. We had to do this because I was unable to get a well paying job else where. What I am asking is to please consider giving me an up grade in my discharge so that I am able to enlist in the Army National Guard so that I can continue what I set out to do when I joined the armed forces. This upgrade will also open many doors that were once shut and allow me to persue a different career if I needed to.

Sincerely,
[signed]
R_ B_ Jr ( Applicant )
 SSN (deleted) ”
Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant’s DD Form 214
5 pages of the Applicant’s Court-Martial record
Character reference, dtd July 13, 2004
Character reference, dtd July 12, 2004
Character reference, dtd July 12, 2004
Character reference, dtd July 7, 2004

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
         Inactive: USMCR (J)               961227 - 970811  COG

 Period of Service Under Review :
Date of Enlistment: 970812               Date of Discharge: 010206

 Length of Service (years, months, days):

         Active: 02 11 27 (Accounts for lost time.)
         Inactive: None

 Age at Entry: 20                          Years Contracted: 4

Education Level: 12                        AFQT: 51

 Highest Rank: PFC                          MOS: 0351 (Anti-Tank Assaultman)

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 4.3 (4)                       Conduct: 3.4 (5)

 Military Decorations: None

 Unit/Campaign/Service Awards: None

 Days of Unauthorized Absence: (34) 19980810 – 19980913

 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 :

980810:  Applicant to UA (AWOL).

980909:  Applicant declared a deserter on 980909 having been an unauthorized absentee since 0731, 980810 from 2 nd Bn, 4 th MAR, 1 st MARDIV.

980914:  Applicant surrendered from UA (AWOL).

990218:  Special Court-Martial.
         Charge I: violation of the UCMJ, Article 86:
         Specification: Did, on or about 10 Aug 98, w/o authority, absent himself from his unit, until on or about 14 Sep 98.
                   Charge II: violation of the UCMJ, Article 121 (0 specs):
          Specification 1: … steal a 1988 Ford Mustang GT …
         Specification 2: … steal one checkbook and one wallet …
         Findings: to Charge I and the specification thereunder, guilty. To Charge II, guilty and specification 1 thereunder, not guilty*. To specification 2 under Charge I, not guilty*.
         * Guilty, except the word “steal” and substituting therefore the words “wrongfully appropriate.” Not Guilty to the greater offense of larceny but Guilty to the lesser included offense of wrongful appropriation.
         Sentence: Bad conduct discharge, confinement for 6 months, forfeiture of $450.00 per month for 6 months, and reduction to Pvt/E-1.
         CA 990930: Sentence approved and ordered executed except for the BCD.

990218:  To confinement, Sentence of SPCM.

990712:  From confinement, to duty.

990819:  To appellate leave.

001012:  NMCCMR: Affirmed findings and sentence.

010119:  NC&PB denied clemency and restoration.

010206:  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 20010206 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, the relevant and material details 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 tried under the Uniform Code of Military Justice, the NDRB is restricted to upgrades based upon clemency only (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 service records that the Board reviewed showed no mitigating or extenuating factors sufficient to offset the seriousness of the offenses for which the discharge was awarded. Relief is therefore denied.

Concerning the Applicant’s desire “to enlist into the Texas Army National Guard,” the NDRB has no authority to change reenlistment codes or make recommendations to permit reenlistment, reentry, or reinstatement into the Naval Service or any other branch of the Armed Forces. Neither a less than fully honorable discharge nor an unfavorable “RE” code is, in itself, a bar to reenlistment. A request for waiver is normally done only during the processing of a formal application for enlistment through a recruiter. Additionally, the Board has no authority to upgrade a discharge for the sole purpose of enhancing employment opportunities as requested in the issue. Regulations limit the Board’s review to a determination. In the Applicant’s case, the Board discovered no impropriety or inequity and considers his discharge proper and equitable. Neither of these requests serves to provide a foundation upon which the Board can grant relief.

The following is provided for the edification of the Applicant. There is no law or regulation that provides for an unfavorable discharge to be upgraded based solely on the passage of time or good conduct in the civilian life subsequent to leaving the service. However, the NDRB is authorized to consider post-service factors in the recharacteriza-tion of a discharge. Outstanding post-service conduct, to the extent such matters provide a basis for a more thorough understanding of the Applicant's performance and conduct during the period of service under review may be considered. Verifiable proof of post-service accomplishments must be provided in order for the Applicant to claim post-service conduct and behavior as a reason to upgrade a less than honorable discharge. Evidence of continuing educational pursuits, an employment record, documentation of community service, certification of non-involvement with civil authorities, and credible evidence of a substance-free lifestyle are examples of verifiable documents that may be provided to receive consideration for relief based on post-service conduct. At this time, the Applicant has not provided sufficient documentation for the Board to consider an upgrade.
 
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 86, unauthorized absence for more than 30 days; Article 121, wrongful appropriation .
C. Secretary of the Navy Instruction 5420.174D of 22December 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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