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USMC | DRB | 2005_Marine | MD0500762
Original file (MD0500762.rtf) Auto-classification: Denied


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

ex-PVT, USMC
Docket No. MD05-00762

Applicant’s Request
The application for discharge review was received on 20050328. The Applicant requests the characterization of service received at the time of discharge be changed to honorable and that the narrative reason for separation be changed to: “RE code.” 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 20050713. After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, the Board determined that clemency was not warranted and that the characterization of discharge was appropriate. The Board’s vote was unanimous that the characterization and reason for 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:

 “ I am requesting a discharge upgrade along with a reenlistment code upgrade to reenter the military in either the Marine Corps or the Army. I believe my discharge is inequitable because the incident in question that caused me to be discharged from the military happened over a two week period and had to do with alcohol problems. My NCO’s new of this problem and offered no help. Once released from military service, I sought help with the problem and have not had any incidents sense. I was always professional with my duties. My problems had to do with my off duty time. During the time in question, I was considering reenlistment for another 4 years. I do no blame the military for my problems and corrected them on my own. I have tried to locate Master Gunnery Sergeant T___ S___ for a reference but could not.”
REMARKS : “Sense my discharge, I have tried to be a model citizen. I am the father of two daughters who I did not want growing up in a world of fear. I was young and stupid when I was younger and regret my mistakes. I have talked to several recruiters about reentering military service and they have been very helpful getting me the information that I needed to start the process. My biggest regret is I got discharged before I relized I had a problem .”
Documentation
Only the service and medical record were reviewed. The applicant did not provide additional documentation for the Board’s consideration

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: USMC              None
         Inactive: USMCR(J)                851108 - 861019  COG

 Period of Service Under Review :
Date of Enlistment: 861020               Date of Discharge: 920204

 Length of Service (years, months, days):

         Active: 05 03 14 (Does not exclude lost time)
         Inactive: None

 Age at Entry: 18                          Years Contracted: 4

 Education Level: 12                        AFQT: 70

 Highest Rank: LCpl                         MOS: 3381

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 4.4 (11)                      Conduct: 4.2 (11)

 Military Decorations: None

 Unit/Campaign/Service Awards: LOA(2), GCM, MUC, REB

 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 :

880121:  Counseled for deficiencies in performance and conduct. [Concerning first alcohol related incident.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.


890321:  NJP for violation of UCMJ, Article 121: Did on or about 880902, steal one cold weather coat liner, a value of $9.80, property of the U.S. Government, violation of UCMJ Article 121: Did on or about 880902, steal one pair of suspenders, a value of $6.70, property of the U.S. Government, violation of UCMJ Article 121: Did on or about 880902, steal two shoulder straps, a value of $5.12, the property of the U.S. Government, violation of UCMJ Article 121: Did on or about 880902, steal one Kevlar helmet, a value of $104.85, property of the U.S. Government, violation of UCMJ Article 121: Did on or about 880902, steal one trip flare, of an unknown value, property of the U.S. Government, violation of UCMJ Article 121: Did on or about 880902, steal one unarmed LAW rocket launcher, of an unknown value, property of the U.S. Government, violation of UCMJ Article 121: Did on or about 880902, steal one pair of glove inserts, a value to $1.15, property of the U.S. Government, , violation of UCMJ Article 121: Did on or about 880902, steal one cold weather helmet liner, a value of $6.40, property of the U.S. Government, violation of UCMJ Article 108: Did on or about 880902 wrongfully dispose of one Kevlar helmet, valued at $104.85, property of the U.S. Government, by giving it to a chief witness, violation of UCMJ, Article 92: Did on or about 880902, violate MCCDCO 8000.1A by wrongfully possessing three (3) throwing stars.
         Award: Forfeiture of $350.00 pay per month for 2 months, restriction for 30 days (suspended for 6 months), extra duty for 30 days, reduction to E-2. No indication of appeal in the record.

900507:  NJP for violation of UCMJ, Article 86: Fail to go at the time prescribed to O’bannon messhall at 0330, 900423.
 Awarded forfeiture of $100.00 pay per month for 1 month, restriction and extra duties for 14 days (suspended for 6 months). Not appealed.
900507:  Counseled for deficiencies in performance and conduct. [An established pattern of misconduct as evidenced by NJP’s dated 890321 and 900507.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

900703:  NJP imposed and suspended on 900507 for a period of 6 months is hereby vacated and the punishment is ordered executed.

 901015:  Special Court-Martial.
          Charge I: violation of the UCMJ, Article 86 (5 Specifications),
         Specification 1: Absent himself from his unit on or about 0331, 900724 and did remain so absent until on or about 0845, 900725, to wit: OCS, MCCDC, Quantico, VA, Specification 2: Fail to go at the time prescribed to his appointed place of duty on or about 0331, 900726, to wit: Bobo Mess Hall, OSC, MCCDC, Quantico, VA; Specification 3: Fail to go at the time prescribed to his appointed place of duty on or about 0331, 900727, to wit: Bobo Mess Hall, OSC, MCCDC, Quantico, VA; Specification 4: Fail to go at the time prescribed to his appointed place of duty on or about 1301, 900815, to wit: BOQ, SptBn, TBS, Quantico, VA; Specification 5: Fail to go at the time prescribed to his appointed place of duty on or about 0731, 900816, to wit: working party, SptBn, S-4 section, TBS, Quantico, VA;
         Charge II: violation of the UCMJ, Article 91: (2 Specifications), Specification 1: Having received a lawful order from Cpl M. A. J___, LCpl S___ was instructed to pick up blinds and curtains in the hallway a thte BOQ’s, an order in which it was his duty to obey, did, willfully disobey the same on 900920 at BOQ’s, SptBn, TBS, MCCDC, Quantico, VA; Specification 2: Was disrespectful in language towards Cpl M. A. J___, then known by LCpl S___, by saying to him, “I am not picking this s__ up” and, “ I am not taking this s__ anymore, or words to that effect, on or about 900920 at SptBn, TBS, MCCDC, Quantico, VA. Charge III: violation of the UCMJ, Article 92, Specification: By violating a lawful general order, to wit: par 5, MCCDC order 8000.1A, dated 880729, by wrongfully possessing one buck knife with a six inch blade, one double edge knife with a four and three-fourth inch blade, one bayonet, various pyrotechnics on or about 900815 at MCCDC, Quantico, VA; Charge V: violation of the UCMJ, Article 123a: (7 Specifications), Specification 1: With intent to defraud and for the procurement of a thing of value, wrongfully and unlawfully make to Morale, Welfare, and Recreation, a certain check upon the MFCU, to wit: check # 131 in the amount of $27.50 then knowing that he, the member thereof, did not or would not have sufficient funds in or credit with such bank for the payment of said check in full upon its presentment on 900607 at MCCDC, Quantico, VA; Specification 2: With intent to defraud and for the procurement of a thing of value, wrongfully and unlawfully make to Morale, Welfare, and Recreation, a certain check upon the MFCU, to wit: check # 116 in the amount of $27.15 then knowing that he, the member thereof, did not or would not have sufficient funds in or credit with such bank for the payment of said check in full upon its presentment on 900621 at MCCDC, Quantico, VA; Specification 3: With intent to defraud and for the procurement of a thing of value, wrongfully and unlawfully make to Morale, Welfare, and Recreation, a certain check upon the MFCU, to wit: check # 129 in the amount of $31.81 then knowing that he, the member thereof, did not or would not have sufficient funds in or credit with such bank for the payment of said check in full upon its presentment on 900701 at MCCDC, Quantico, VA; Specification 4: With intent to defraud and for the procurement of a thing of value, wrongfully and unlawfully make to Morale, Welfare, and Recreation, a certain check upon the MFCU, to wit: check # 135 in the amount of $5.50 then knowing that he, the member thereof, did not or would not have sufficient funds in or credit with such bank for the payment of said check in full upon its presentment on 900711 at MCCDC, Quantico, VA; Specification 5: With intent to defraud and for the procurement of a thing of value, wrongfully and unlawfully make to Morale, Welfare, and Recreation, a certain check upon the MFCU, to wit: check # 136 in the amount of $24.15 then knowing that he, the member thereof, did not or would not have sufficient funds in or credit with such bank for the payment of said check in full upon its presentment on 900711 at MCCDC, Quantico, VA; Specification 6: With intent to defraud and for the procurement of a thing of value, wrongfully and unlawfully make to Morale, Welfare, and Recreation, a certain check upon the MFCU, to wit: check # 144 in the amount of $26.00 then knowing that he, the member thereof, did not or would not have sufficient funds in or credit with such bank for the payment of said check in full upon its presentment on 900726 at MCCDC, Quantico, VA; Specification 7: With intent to defraud and for the procurement of a thing of value, wrongfully and unlawfully make to Morale, Welfare, and Recreation, a certain check upon the MFCU, to wit: check # 127 in the amount of $43.26 then knowing that he, the member thereof, did not or would not have sufficient funds in or credit with such bank for the payment of said check in full upon its presentment on 900729 at MCCDC, Quantico, VA. Charge VI: violation of the UCMJ, Article 128, Specification: Assault D___ M. S____, L__ C. S____, PFC Z___ U___, PFC N___ A___, and PFC S___ H. D___, by throwing firecrackers at them while at Lunga Reservoir and during their drive back to the Basic School, area on or about 900815 at MCCDC, Quantico, VA. Charge VII: violation of the UCMJ, Article 134: (2 Specifications), Specification 1: Orally communicated to D___ M. S___, and L___ C. S____ certain indecent language, to wit: “Base w____, s___, b____ and p_____.”; Specification 2: Drunk and disorderly, which conduct was a nature to bring discredit upon the Armed Forces on or about 900815 at MCCD, Quantico, VA.
         Findings: to Charge I and specifications 1 through 4 thereunder, guilty, Specification 5 thereunder charge I is disapproved, specification 5 under charge I dismissed. To Charge II and specifications 1 and 2 thereunder, guilty. To Charge III and specification thereunder, guilty, except words “a pair of nunchakus, two”, substituting therefore the word ”one”, and except the words, “ and a simulator grenade fuse explosive device. To Charge IV and specifications 1 through 7 thererunder, guilty. To ChargeV and specification thereunder, guilty. To Charge VI and specifications 1 and 2 thereunder, guilty.
         Sentence: Forfeiture of $350.00 pay per month for 2 months, confinement for 60 days, reduction to E-1, and a bad conduct discharge.
         CA 910129: Sentence approved and ordered executed except for the BCD.
        
901020:  To confinement, Sentence of SPCM.

901129:  Applicant waived his right to clemency review.

910108:  From confinement, to duty

910129:  NMCCMR: Affirmed findings and sentence.

920117:  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 19920204 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).

In response to the Applicant’s issue, relevant and material facts 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, 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 and issues submitted, 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. Relief denied.

Since the NDRB has no jurisdiction over reenlistment, reentry, or reinstatement into the Marine Corps or any other of the Armed Forces, NDRB is not authorized to change a reenlistment code. Reenlistment policy of the Marine Corps is promulgated by the Commandant, United States Marine Corps, Code MMEA, 3280 Russell Road, Quantico, VA 22134. Neither a less than fully honorable discharge nor an unfavorable "RE" code is, in itself, a bar to reenlistment. A request for a waiver is normally done only during the processing of a formal application for enlistment through a recruiter.

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 claims of 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 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 91, willful disobeying a lawful order and disrespectful language to a superior non-commissioned officer, Article 92 failure to obey general order, Article 123a checks, insufficient funds, Article 128 assault with a dangerous weapon or means likely to produce grievous bodily harm or death and Article 134 indecent language, other cases, and drunk and disorderly.

 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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