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USMC | DRB | 2005_Marine | MD0500485
Original file (MD0500485.rtf) Auto-classification: Denied


DEPARTMENT OF THE NAVY
NAVAL DISCHARGE REVIEW BOARD (NDRB)
 DISCHARGE REVIEW
DECISIONAL DOCUMENT
FOR OFFICIAL USE ONLY

ex-PVT, USMC
Docket No. MD05-00485

Applicant’s Request
The application for discharge review was received on 20050125. The Applicant requests the Discharge Characterization of Service received at the time of discharge be changed to honorable. The Applicant requests a documentary record discharge review. The Applicant designated Veterans of Foreign Wars as the representative.

 Decision

A documentary discharge review was conducted in Washington, D.C. on 20051006. 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 as a Bad Conduct discharge by reason of Court-Marital.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

“I am currently employed as a deputy sheriff with the Putnam County Sheriff’s office. When I applied they sent for my military records and they never received them. I just recently applied for another agency and they sent for them and received them with it saying I had a Bad Conduct Discharge. When I originally got out I filled out a DD Form 293 with a Captain M_ at MCAS Cherry Point and there is no record of it anywhere. I am now requesting the board to review my discharge for an upgrade so that I can resume my career in law enforcement with no further problems. Thank you for your time.

* I have been employed with the Putnam County Sheriff’s Office for 2 years in December 2004. I received my position in December 2002.”

Additional issues submitted by Applicant’s representative (Veterans of Foreign Wars):

 “Propriety or Equity Issue(s):

Statement: In accordance with 32 CFR § 724, and SECNAVINST 5420.174D, the Veterans of Foreign Wars submits to the Naval Discharge Review Board (NDRB) the above issue and following statement in supplement to the Applicant’s petition

Mr. T_ (Applicant) served in the US Marine Corps from Feb. 11, 1997 to Nov. 13, 2001. He was awarded a Bad Conduct Discharge pursuant to the findings of his guilt on one specification of unauthorized absence and 3 specifications of larceny.

Mr. T_ (Applicant) is currently employed as a Deputy Sheriff in Putnam County, FL. He is asking for clemency and a compassionate upgrade of his discharge. Mr. T_ (Applicant) is concerned that his discharge is going to adversely affect his current and future employment opportunities in law enforcement.

The Veterans of Foreign Wars’ express purpose in providing this statement and any other submittals or evidence filed is to assist this applicant in the clarification and resolution of the impropriety or inequity raised. To that end, we rest assured that the NDRB’s final decision will reflect sound equitable principles consistent in law, regulation, policy and discretion as promulgated by title 10 USC § 1553, and set forth in 32 CFR § 724 and SECNAVINST 5420.174D.

This case is now respectfully submitted for deliberation and disposition. ”


Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant’s DD Form 214 (3)
Certificate of Compliance Law Enforcement Officer 672 hours from State of Florida dtd May 13, 2003
Certificate of Completion (672 hours Law Enforcement Basic Recruit) dtd December 12, 2002

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: None
         Active: None

 Period of Service Under Review :
Date of Enlistment: 19970211             Date of Discharge: 20011113

 Length of Service (years, months, days):

 Active: 04 05 26
          Inactive: None

 Time Lost During This Period (days):
         Unauthorized absence: 4 days
         Confinement:              93 days

 Age at Entry: 19

 Years Contracted: 5

Education Level: 12                                 AFQT: 64

 Highest Rank: LCpl                                  MOS: 6335

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 4.2 (1)                       Conduct: 3.8 (1)

 Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as stated on the DD Form 214): Rifle Marksman Badge, Letter of Appreciation.


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 :

980115:  Counseling: Advised of deficiencies in performance and conduct (Violation of Articles 86 and 92 of the UCMJ; UA from 1300 until 1630 on 980115 and disobedience of a lawful order by securing yourself and not keeping your NCOIC informed of your whereabouts.) Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

980202:  Counseling: Advised of deficiencies in performance and conduct (Financial irresponsibility; specifically failure to pay just debts.) Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

980401:  Acknowledged understanding of eligibility but not recommended for promotion to LCpl for the month of April because of two page elevens dated 980115 and 980202. Applicant chose not to make a statement.

981215:  Acknowledged understanding of eligibility but not recommended for promotion to Cpl for the promotion period of Jan, Feb, Mar 1999 due to PFT failure. Applicant chose not to make a statement.

990317:  Acknowledged understanding of eligibility but not recommended for promotion to Cpl for the promotion period of Apr, May, Jun 1999 due to PFT failure. Applicant chose not to make a statement.

990818:  Acknowledged understanding of eligibility but not recommended for promotion to Cpl for the promotion period of Jul, Aug, Sep 1999 due to PFT failure IAW MCO P1400.32B par 1204.3t. Applicant chose not to make a statement.

990924:  Acknowledged understanding of eligibility but not recommended for promotion to Cpl for the promotion period of Oct, Nov, Dec 1999 due to PFT failure IAW MCO P1400.32B par 1204.3n. Applicant chose not to make a statement.

991008:  Applicant to unauthorized absence on 991008.

991012:  Applicant from unauthorized absence on 991012 (4 days).

000105:  Acknowledged understanding of eligibility but not recommended for promotion to Cpl for the month of Jan, Feb, Mar, 2000 because of pending Court-Martial offense. Applicant chose not to make a statement

000202:  Special Court Martial [trial date 000202]
         Charge I: violation of the UCMJ, Article 86,
         Specification: Did, on 8 October 1999, without authority, absent himself from his unit until 12 October 1999.
         Charge II: violation of UMCJ, Article 121, (3 Specifications).
         Specification 1: Did, on 27 August 1999, steal fifty-one dollars and fifty cents, the property of Lance Corporal G_ D. W_.
         Specification 2: Did, on 29 August 1999, steal twenty-one dollars and fifty cents, the property of Lance Corporal G_.
         Specification 3: Did, between 1 August 1999 and 31 August 1999, steal a computer, valued at more than $100.00, the property of Gateway, Incorporated.
         Findings: to Charge I and specification thereunder, guilty, to Charge II and specifications 1, 2, and 3 thereunder, guilty.
         Sentence: Confinement for 5 months, forfeiture of $650 per month for 5 months, reduction to E-1, Bad Conduct discharge.
         CA 000814: The sentence is approved and, except for bad conduct discharge, the sentence will be executed.
        
000202:  Joined the Brig at Marine Corps Base, Camp Lejeune, North Carolina, for confinement.

000203:  Applicant requested voluntary appellate leave.

000315:  Appellate leave approved pending completion of physical examination.

000506:  From confinement, restored to full duty.

000508:  Applicant informed by Commanding Officer that he is not eligible for reenlistment due to his appellate leave status. Also informed that he will receive a reenlistment code of RE-4.

000508:  Applicant to appellate leave.

010719:  NMCCCA: Affirmed findings and sentence.

011023:  Appellate review complete.

011113:  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 20011113 with a bad conduct discharge which was the sentence adjudged by a properly convened special court-martial. The convening and appellate review authorities subsequently approved the sentence (A and B). After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, the Board found that the Applicant’s issues were insufficient to merit clemency (C).

The Applicant advises the Board that he is currently employed as a deputy sheriff and desires a discharge characterization upgrade in order to allay any adverse affects on his current or future employment opportunities in law enforcement. The action of the NDRB is restricted to upgrades based on clemency when a discharge is adjudged by a court-martial case. Clemency is an act of leniency that reduces the severity of the punishment imposed. Relevant and material facts stated in a court-martial specification are presumed by the NDRB to be established facts. After a thorough review of the Applicant’s record and issues submitted, the Board determined that clemency is not warranted. The sentence awarded the Applicant at his court-martial was appropriate for the offenses he committed. Further, the Applicant is advised that t he Board has no authority to upgrade a discharge for the sole purpose of enhancing employment opportunities. This issue does not serve to provide a foundation upon which the Board can grant relief. Relief on this basis is denied.

The following is provided for the Applicant’s edification. While there is no law or regulation, which provides that an unfavorable discharge may be upgraded based solely on the passage of time or good conduct in civilian life subsequent to leaving the Marine Corps, the Board is authorized to consider post-service factors in the recharacterization of a discharge 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. Verifiable proof of any 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, verifiable employment records, documented community service, and certification of non-involvement with civil authorities are examples of documentation that should have been provided to receive consideration for relief based on post-service conduct. At this time, the Applicant did not provided any post-service documentation for consideration. No relief is granted on this basis.

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 documentation to support any post-service accomplishments or any other evidence related to his discharge 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 COURT-MARTIAL , of the Marine Corps Separation and Retirement Manual, (MCO P1900.16F), effective 01 September 2001 until Present.

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 121 Larceny of value more than $100.00.
C. Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part II, Para 205(2), Jurisdictional Limitations Authority for Review of Discharges.

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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