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USMC | DRB | 2005_Marine | MD0500950
Original file (MD0500950.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. MD05-00950

Applicant’s Request
The application for discharge review was received on 20050511. The Applicant requests the Discharge Characterization of Service received at the time of discharge be changed to general (under honorable conditions). The Applicant requests a documentary record discharge review. The Applicant did not designate a representative on the DD Form 293. Subsequent to the application, the applicant obtained representation by American Legion.

 Decision

A documentary discharge review was conducted in Washington, D.C. on 20060112. 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 and from an attached document/letter to the Board:

“I want to change my discharge because I need a better job my discharge won’t let me get that chance for a better job. Made a mistake wish to better myself would get a better jobs if changed. I work hard just want to better myself for my future. I know I put this off for a long time but request it be changed.”

“To whom it may concerns
I am writing you for a upgrade of my discharge. I wish for upgrade because I cannot get a good paying job. I put it off I know it is my fault for this. I is still haunting my career in jobs I apply for. I think it is unjust because it been so long of a problem I wish for one upgrade so I can just get a good paying job for instant’s I apply for a Federal or State job and that what hold me up from making a career for myself. I have know one to vouch for me right now. So I am trying to do this myself. I have not got into trouble I don’t have a felony record or DWI’s I really I am doing good I want a good paying job. Every job I have I work hard never late or mess up on job. Most jobs around here where I live don’t have retirement if you to upgrade my discharge I might have a chance to get a good job. I know I should have done this a long time ago but failed to. I hope it get upgraded please consider it please.

Thank You
[signed] D_ E. A_ (Applicant)”

 Representative submitted no issues.
Applicant’s Remarks: “Hope to consider my request.”

 Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant’s DD Form 214 (3)
Service Related Documents (41 pgs)

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USMCR (DEP)    19940423 – 19940427               COG
         Active: None

 Period of Service Under Review :
Date of Enlistment: 19940428             Date of Discharge: 19980911

 Length of Service (years, months, days):

 Active: 04 03 05 (Does not exclude lost time.)
          Inactive: None

 Time Lost During This Period (days):
         Unauthorized absence: none
         Confinement:              101 days

 Age at Entry: 20

 Years Contracted: 4

Education Level: 12                                 AFQT: 32

 Highest Rank: LCpl                                  MOS: 0313

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 4.4 (9)                       Conduct: 4.3 (9)

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as stated on the DD Form 214): National Defense Service Medal, Rifle Expert Badge.


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 :

970603:  Applicant to pre-trial confinement.

970825:  Applicant released from pre-trial confinement, (83 days) credited toward the period of confinement approved.
        
970825:  Special Court Martial
         Charge I: violation of the UCMJ, Article 107.
          Specification: Did, on board Marine Corps Base, Camp Lejeune, North Carolina, on or about 30 May 1996, with intent to defraud make to Chief Warrant Officer-3 G. R. S_, U.S. Marine Corps, an official statement, to wit: “That he had not seen any night vision goggles,” or words to that effect, which statement was totally false, and was then known by the said Lance Corporal A_ to be so false. Plea: Guilty. Findings: Guilty.
          Charge II: violation of UMCJ, Article 121.
         Specification: Did, on board Marine Corps Base, Camp Lejeune, North Carolina, on or about May 1996, steal Night Vision Goggles, military property, of a value of about $4584.00, the property of the U.S. Government. Plea: Guilty. Findings: Guilty.
         Sentence: Confinement for 4 months, forfeiture of $600 per month for 4 months, reduction to E-1, Bad Conduct discharge.
         CA 971218: The sentence is approved and, except for bad conduct discharge, will be executed.
        
970825:  Joined Marine Corps Base Brig, Camp Lejeune, North Carolina, for confinement.

970912:  From confinement, to appellate leave.

980226:  NC&PB clemency not granted.

 980616:  NMCCCA: Affirmed findings and sentence.

980904:  Appellate review complete.

980911:  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 19980911 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). 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).

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.

For the edification of the Applicant, the Board has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities. Regulations limit the Board’s review to a determination on the propriety and equity of the discharge.

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 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 107, false official statements, and/or Article 121, larceny of value of 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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