Search Decisions

Decision Text

USMC | DRB | 2005_Marine | MD0501395
Original file (MD0501395.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. MD05-01395

Applicant’s Request
The application for discharge review was received on 20050809. 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.

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:

“I need to upgrade my discharge so that when I am released from prison, I can get a job. I was in a club in Panama where I thought everything was at peace. I tapped a Panamanian woman on the arm, not knowing she was married or in love with a soldier. She got mad and cursed me out and went to get her boyfriend who was in the army. We weren’t in uniform so I had no idea he was in the military. He approached me in an aggressive manner. After I finished my drink, I walked over to where they were dancing and struck him on the head with a bottle. As I began to run out of the club, the Panamanian woman pulled a knife and stabbed me in the stomach. I wasn’t a regular in this club so I thought I could go there and have a good time. I don’t think I should be punished both by the courts and also by the hands of this woman. I was incarcerated in the Brig for assault in addition to having endure life threatening knife wounds. I was awaiting medial discharge after this incidence. I was diagnosed with Patella Femoral Syndrome (PFS) in my knees from running so much in Panama. My knees still bother me. With an upgrade, I can get benefits.”
Applicant’s Remarks: (Taken from the DD Form 293): “Please grant this wish for upgrade. I have been through a lot and for the military not to grant this request would be heartbreaking. Without my benefits, I don’t think I can survive as a marine should. Sometimes I can barely walk. Right now I am in a legal battle. The upgrade will enable me to have a better life after prison.”

 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)    19920515 – 19921231               COG
         Active: None

 Period of Service Under Review :
Date of Enlistment: 19930101             Date of Discharge: 19951012

 Length of Service (years, months, days):

 Active: 02 09 02 (does not exclude confinement)
          Inactive: None

 Time Lost During This Period (days):
         Unauthorized absence: 35 days
         Confinement:              unknown

 Age at Entry: 18

Years Contracted: 4

Education Level: 12                                 AFQT: 53

 Highest Rank: LCpl                                  MOS: 0341

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 4.4 (5)                       Conduct: 4.3 (5)

 Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as stated on the DD Form 214): Rifle Marksmanship Badge, National Defense Service Medal, 9MM Marksmanship 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 :

940419:  Applicant to unauthorized absence at 0630 on 940419.

940420:  Applicant from unauthorized absence at 1300 on 940420.

940429:  Applicant to unauthorized absence at 0630 on 940429.

940603:  Applicant from unauthorized absence at 1100 on 940603.

940603:  Applicant to confinement.

940725:  Special Court Martial
         Charge I: violation of the UCMJ, Article 86, (3 specifications).
         Specification 1: Did at Naval Air Station, Norfolk, Virginia, on or about 940418, without authority, fail to go at the time prescribed to his appointed place of duty. Plea : Not Guilty. Finding : Not Guilty.
         Specification 2: Did at Naval Air Station, Norfolk, Virginia, on or about 940419, without authority, absent himself from his unit and did remain so absent until on or about 940420. Plea : Not Guilty. Finding : Not Guilty.
         Specification 3: Did at Naval Air Station, Norfolk, Virginia, on or about 940429, without authority, absent himself from his unit and did remain so absent until he was apprehended on or about 940603. Plea: Guilty, except the word and figure “29 April,” substituting therefore the word and figure “2 May.” To the excepted word and figure, Not Guilty. To the substituting word and figure, Guilty. To the specification as expected and substituted, Guilty. Finding : Guilty, excepting the date “29 April,” substituting therefore the date “2 May.” of the excepted date, Not Guilty. Of the substituted date, Guilty.
         Charge II: violation of UCMJ, Article 128 (2 specifications).
         Specification 1: Did, at the NCO club, Fort Clayton, Republic of Panama, on or about 940225, commit an assault upon Sergeant E. A. J_, U.S. Army, by striking him in the face with a means likely to produce death or grievous bodily harm, to wit: a beer bottle. Plea: Guilty, excepting the words “death or.” To the excepted words, Not Guilty. To the Specification as excepted, Guilty. Finding : Guilty, excepting the words “death or.”
         Specification 2: Did, at the NCO club, Fort Clayton, Republic of Panama, on or about 940225, unlawfully strike Sergeant E. A. J_, U.S. Army, in the back of the head with a closed fist. Plea: Guilty. Finding : Guilty.
         Sentence: Confinement for 4 months, forfeiture of $500 per month for 4 months, reduction to E-1, bad conduct discharge.
          CA 950305: Only so much of the sentence as provides for a bad conduct discharge, four months confinement, forfeiture of $500 per month for four months, and reduction to pay grade E-1, is approved and, except for the bad conduct discharge, will be executed, but the execution of that part of the sentence extending to confinement in excess of 120 days is suspended for a period of 12 months from the date of trial, at which time, unless the suspension is sooner vacated, the suspended part of the sentence will be remitted without further action.

941004:  Applicant from confinement. [date estimated]

941015:  Applicant to appellate leave.

950720:  NMCCCA: Affirmed findings and sentence.

950929:  Appellate review complete.

951012:  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 19951012 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 issues, 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. Additionally, the Board has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities. Relief denied.

The Veterans Administration determines eligibility for post-service benefits not the Naval Discharge Review Board. There is no requirement or law that grants recharacterization solely on the issue of obtaining Veterans' benefits and this issue does not serve to provide a foundation upon which the Board can grant relief. 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 86, unauthorized absence for more than 30 days or Article 128, assault.
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

Similar Decisions

  • USMC | DRB | 2006_Marine | MD0600504

    Original file (MD0600504.rtf) Auto-classification: Denied

    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. 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. You may view DoD Instruction 1332.28 and other Decisional Documents by going online at “...

  • NAVY | DRB | 2006_Navy | ND0600230

    Original file (ND0600230.rtf) Auto-classification: Denied

    ND06-00230 Applicant’s Request The application for discharge review was received on 20051118. Naval Reserve, USS JOHN F. KENNEDY, on active duty, did, at Navy Exchange, Naval Station, Norfolk, Virginia, on or about August 1992, with intent to defraud, falsely make in its entirety a certain check in the following words and figures, to wit: (copy of the check, number 0107 to NEX in the amount $150.00) which said check would, if genuine, apparently operate to the legal harm of...

  • AF | DRB | CY2003 | FD2003-00342

    Original file (FD2003-00342.pdf) Auto-classification: Denied

    CONCLUSIONS: The Discharge Review Board concludes that the applicant’s punitive discharge by Special Court Martial was appropriate under the facts and circumstances of this case and there is insufficient basis as an act of clemency for change of discharge. Finding: Not Guilty, but Guilty of Violation of Article 130. 4 at Minot Air Force Base, North Dakota, on or about 17 Specification: Did, June 1989, in the nighttime.

  • USMC | DRB | 2006_Marine | MD0600661

    Original file (MD0600661.rtf) Auto-classification: Denied

    The Applicant requests thatthe Discharge Characterization of Service received at the time of discharge be changed to general (under honorable conditions). PART I - ISSUES AND DOCUMENTATION 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 86, unauthorized absence for more than 30 days.

  • NAVY | DRB | 2006_Navy | ND0600429

    Original file (ND0600429.rtf) Auto-classification: Denied

    PART I - APPLICANT’S ISSUES AND DOCUMENTATION Issues, as stated Applicant’s issues, as stated on the application: “ Respectfully request change of bad conduct discharge into an honorable discharge, also please change my separation code:jjd/901 and re-entry code of re4. 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 violations of the UCMJ, Articles 86 (Unauthorized...

  • USMC | DRB | 2006_Marine | MD0600950

    Original file (MD0600950.rtf) Auto-classification: Denied

    The Applicant requests the Discharge Characterization of Service received at the time of discharge be changed to general (under honorable conditions). PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW Discussion The Applicant was discharged on 20050826 with a bad conduct discharge which was the sentence adjudged by a properly convened special court-martial. After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, the Board...

  • ARMY | BCMR | CY2008 | 20080013107

    Original file (20080013107.txt) Auto-classification: Denied

    On 17 June 2003, before a military judge at a General Court-Martial, the applicant pled not guilty to all charges and specifications. Counsel also stated that the military judge should have combined Charge I and Charge II for sentencing since both offenses arose from the same act. Army Regulation 635-200, paragraph 3-7b, provides that a general discharge is a separation from the Army under honorable conditions.

  • NAVY | DRB | 2006_Navy | ND0600636

    Original file (ND0600636.rtf) Auto-classification: Denied

    ND06-00636 Applicant’s Request The application for discharge review was received on 20060412. 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 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...

  • AF | DRB | CY2006 | FD2005-00472

    Original file (FD2005-00472.pdf) Auto-classification: Denied

    Applicant's Issues. I am recommending your discharge from the United States Air Force for Commission of a Serious Offense - Other Serious Offenses. If you are discharged, then you will be ineligible for reenlistment in the Air Force.

  • USMC | DRB | 2006_Marine | MD0600400

    Original file (MD0600400.rtf) Auto-classification: Denied

    MD06-00400 Applicant’s Request The application for discharge review was received on 20060112. I request to upgrade my discharge from a General under Honorable Conditions to an Honorable Discharge based on the justification of my post service conduct to the present date. Initially the Applicant requested to appear before an administrative separation board but on 19921118 the Applicant forwarded a Conditional Waiver of Administrative Discharge Board to the GCMCA, offering to waive his...