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USMC | DRB | 2005_Marine | MD0501393
Original file (MD0501393.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. MD05-01393

Applicant’s Request
The application for discharge review was received on 20050815. 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 did not designate a representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20060522. 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:

“Awarded Good Conduct Metal on 970123. Did not received or able to require signature.”
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):
         Inactive: USMCR (DEP)    19920819 – 19930801               COG
         Active: None

 Period of Service Under Review :
Date of Enlistment: 19930802             Date of Discharge: 19980217

 Length of Service (years, months, days):

 Active: 04 05 09 (excludes lost time)
          Inactive: None

 Time Lost During This Period (days):
         Unauthorized absence: none
         Confinement:              37 days

 Age at Entry: 18

Years Contracted: 6

 Education Level: 12                                 AFQT: 50

 Highest Rank: PFC                                   MOS: 0431

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 3.8 (6)                       Conduct: 3.7 (6)

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


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 :

940408:  Counseling: Advised of deficiencies in performance and conduct (Absence from appointed place of duty at appointed time and insubordinate conduct.).

940425:  Counseling: Advised of deficiencies in performance and conduct (Financial irresponsibility.), necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

940519:  Acknowledged understanding of eligibility but not recommended for promotion to LCpl for 2d Prom Quarter CY94 because of tardiness, disobedience and financial irresponsibility. Applicant chose not to make a statement.

940616:  Acknowledged understanding of eligibility but not recommended for promotion to LCpl for July 94 because of three page 11 entries in the past 2 months (driving with no license, having car on base with no decal, no license tags on car, having an open container of beer in the car). Applicant chose not to make a statement.

940701:  NJP for violation of UCMJ, Article 86: UA (AWOL) from HQSvcCo, 2d SRIG (G-4, II MEF) from 0830-1000 on 22 Jun 94.
 Violation of UCMJ, Article 92: Disobeyed a direct order from MGSgt W_ on or about 940617.
Violation of UCMJ, Article 107: Made false statement to MGSgt W_ and GySgt M_, on or about 0735, 940622.
         Award: Forfeiture of $416 per month for 2 months, (forfeiture of $416 per month suspended for 6 months), 30 days correctional custody without suspension from duty. Not appealed.

940914:  Acknowledged understanding of eligibility but not recommended for promotion to LCpl for September 94 because of recent NJP. Applicant chose not to make a statement.

941012:  Acknowledged understanding of eligibility but not recommended for promotion to LCpl for the month of October because of recent NJP. Applicant chose not to make a statement.

950226:  Counseling: Advised of deficiencies in performance and conduct (Unsatisfactory performance of duties and unsanitary habits.), necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

950424:  Counseling: Advised of deficiencies in performance and conduct (Driving on base revocation.), necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

950630:  Counseling: Advised of deficiencies in performance and conduct (Failure to prepare and pass the section OIC’s wallocker, room and personnel inspection conducted by LtCol M_ on 26 June 1995 and for also being seen out of uniform at 0725, 26 June 1995 while walking from building HP-51 to barracks building HP-55.), necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

951129:  NJP for violation of UCMJ, Article 92: At CoA, HqSvcBn, on or about 950930, violated BO P5560.2J by having an open container of an alcoholic beverage in [Applicant’s] POV.
 Violation of UCMJ, Article 92: At CoA, HqSvcBn, on or about 950930, violated BO P5560.2J by driving a POV while on base revocation, state of North Carolina suspension, and state Virginia suspension.
Violation of UCMJ, Article 107: At CoA, HqSvcBn, on or about 950930, made a false official statement to Military Policeman, to wit: When questioned about [Applicant’s] knowledge of [Applicant’s] suspended license in both the state of North Carolina, and Virginia, and [Applicant’s] revoked license on Base, [Applicant] replied NO. Which in fact was totally false, when in fact [Applicant was] notified on several occasion by Military Police and [Applicant’s] SNCOIC.
          Award: Forfeiture of $427 per month for 2 months, restriction and extra duty for 45 days, reduction to E-1. Appealed 951204. Appealed denied 950105.

960724:  Special Court Martial
         Charge I: violation of the UCMJ, Article 90, (2 specifications).
         Specification 1: Having received a lawful order from Lieutenant Colonel W. G. T_, USMC, his superior commissioned officer, then known by the said Private P_ to be his superior commissioned officer, to be restricted from all other living quarters, or words to that effect, did, on board MCB, Camp Lejeune, NC, on or about 16 January 1996, willfully disobey the same. Plea : Not Guilty. Findings : Not Guilty.
 Specification 2: Having received a lawful order from Captain D. W. R_, USMC, his superior commissioned officer, then known by the said Private P_ to be his superior commissioned officer, to report to Captain R_ or First Sergeant J_ A. D_, USMC, no later than close of business on 3 January 1996, or words to that effect, did, on board MCB, Camp Lejeune, NC, on or about 3 January 1996, willfully disobey the same. Plea : Guilty. Findings : Guilty.
          Charge II: violation of UMCJ, Article 92.
 Specification: Did, at MCB, Camp Lejeune, NC, on or about 31 December 1995, violate a lawful order, to wit: paragraph 5000.2 Base Order P5560.2J, dated 23 January 1984, by wrongfully driving while his driving privileges had been suspended. Plea : Guilty. Findings : Guilty.
Charge III: violation of UMCJ, Article 107.
Specification: Did, at MCB, Camp Lejeune, NC, on or about 31 December 1995, with intent to deceive make to Sergeant J_ D. R_, USMC, an official statement, to wit: my name is W_, which statement was totally false and was then known by the said Private P_ to be so false. Plea : Guilty. Findings : Guilty.
          Sentence: Confinement for 90 days, forfeiture of $550 per month for 6 months, Bad Conduct discharge.
         CA 970121: The sentence approved and, except for bad conduct discharge will be executed, but the execution of that part of the sentence extending to all confinement in excess of 45 days is suspended for a period of 12 months from date of trial.
        
960724:  Joined Marine Corp Base Brig, Camp Lejeune, North Carolina for confinement [Date extracted from DD Form 214].

960830:  From confinement, restored to full duty [Date extracted from DD Form 214].

970310:  Applicant to appellate leave.

970514:  NMCCCA: Affirmed findings and sentence.

970731:  Appellate review complete.

980217:  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 19980217 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). The Board presumed regularity in the conduct of governmental affairs (D).

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. The Applicant’s record reveals four retention warnings and nonjudicial punishment proceedings for violations of Articles 86, 92 and 107. At special court-martial the Applicant was convicted of violations of Articles 90, 92 and 107. Therefore, after a thorough review of the Applicant’s record, 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.

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 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 90, willfully disobey a superior commissioned officer, Article 92, failure to obey order/regulation or Article 107, false official statement.
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.
D. Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part II, Para 211, Regularity of Government Affairs.

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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