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USMC | DRB | 2005_Marine | MD0500030
Original file (MD0500030.rtf) Auto-classification: Denied


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

ex-PVT, USMC
Docket No. MD05-00030

Applicant’s Request
The application for discharge review was received on 20040927. The Applicant requests the reason for the discharge be changed to “in lue of a court-martial.” 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 20050210. 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 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

 Applicant’s issues, as stated on the application:

 1. “My discharge was inequitable because it was based on one isolated incident in 36 months of service with no other adverse action.”

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

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
         Inactive: USMCR(J)                890823 - 890918  COG

 Period of Service Under Review :
Date of Enlistment: 890919               Date of Discharge: 950210

 Length of Service (years, months, days):

         Active: 05 04 23                  [Does not exclude lost time]
         Inactive: None

 Age at Entry: 17                          Years Contracted: 4

Education Level: 12                        AFQT: 32

 Highest Rank: LCpl                         MOS: 0311

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 4.3 (9)                       Conduct: 3.9 (9)

 Military Decorations: None

 Unit/Campaign/Service Awards: NDSM, MUC, CGM, LoA

Days of Unauthorized Absence: 2

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 :

910611:  Counseled for deficiencies in performance and conduct. [Failure to notify chain of command of lost flak jacket and helmet.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

920227:  Counseled for deficiencies in performance and conduct. [Failure to follow instructions and obey orders.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

921116:  Counseled for deficiencies in performance and conduct. [Failure to notify chain of command of legal responsibilities pertaining to your paternity case.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

930701:  Special Court-Martial.
         Charge I: Violation Art 121, UCMJ: Spec 1. Larceny of a M-228 Grenade Fuse/Practice, property of US. Spec 2. Larceny of two M117 Simulator Booby Traps with accessories, military property of the US. Spec 3. Larceny of 25 A080 CTG 5.56mm Blank Rounds, military property of the US. Spec 4. Larceny of a M49A1 Flare surface trip, military property of the US.
         Charge II: Violation of Article 123a, UCMJ:
Spec 1. Making and uttering a false check to defraud for $284.00.
Spec 2. Making and uttering a false check to defraud for $90.00.
Spec 3. Making and uttering a false check to defraud for $46.19.
Spec 4. Making and uttering a false check to defraud for $625.46.
Spec 5. Making and uttering a false check to defraud for $260.00.
Spec 6. Making and uttering a false check to defraud for $200.00.
Spec 7. Making and uttering a false check to defraud for $200.00.
Spec 8. Making and uttering a false check to defraud for $92.60.
Spec 9. Making and uttering a false check to defraud for $200.00.
Spec 10. Making and uttering a false check to defraud for $89.95.
Spec 11. Making and uttering a false check to defraud for $200.00.
Spec 12. Making and uttering a false check to defraud for $200.00.
Spec 13. Making and uttering a false check to defraud for $200.00.
Spec 14. Making and uttering a false check to defraud for $200.00.
Spec 15. Making and uttering a false check to defraud for $200.00.
Spec 16. Making and uttering a false check to defraud for $36.65.
          Findings: To Charge I: Not Guilty as charged of larceny, but Guilty to wrongful appropriation; Specs 2-3, Chg I: Not Guilty.
         To Charge II and all specifications thereunder, Guilty.
         Sentence: Reduction to E-1, and a bad conduct discharge.
         CA 940201: Sentence approved and ordered executed except for the BCD.

930727:  To UA

930729:  From UA.

940201:  To involuntary leave awaiting appellate review.
        
940307:  NC&PB denied clemency and restoration.

941019:  NMCCMR: Affirmed findings and sentence.

950210:  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 19950210 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. After a thorough review of the Applicant’s record, issues submitted, and post service accomplishments, the Board determined that clemency was not warranted and that the sentence awarded the Applicant at his court-martial was appropriate for the offenses he committed. Additionally, no other Narrative Reason for Separation could more clearly describe why the Applicant was discharged. 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 123a, utter checks with intent to deceive.
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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