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USMC | DRB | 2006_Marine | MD0600504
Original file (MD0600504.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. MD06-00504

Applicant’s Request
The application for discharge review was received on 20060227 . 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 American Legion as the representative on the DD Form 293

Decision

A documentary discharge review was conducted in Washington, D.C. on 20061206 . 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 ization of the discharge shall not change. The discharge shall remain as a bad conduct discharge by reason of court-marital.



PART I - ISSUES AND DOCUMENTATION


Decisional Issues :

Equity – quality of service
Equity – post service

 Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant’s DD Form 214 (Service 2)
Letter from Applicant, dtd February 15, 2006
Resume (2 copies)
Certificate of Completion for Municipal Police Academy from Delaware County Community College, dtd December 19, 2005
 Dean’s List ltr from V_ M. C_, Ed.D., Provost, Delaware County Community College, dtd January 23, 2006
Applicant’s DD Form 214 (Service 2)
Request for Criminal Record Check, dtd March 24, 2006
 Employment/Character Reference ltr from B_ R_, dtd June 1, 2006
 Letter from Applicant, dtd June 1, 2006

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USMCR (DEP)    19970108 - 19971116       COG
          Active: None
Period of Service Under Review :
Date of Enlistment: 19971117              Date of Discharge: 20011120

Length of Service (years, months, days):

 Active: 0 4 0 0 03 (Does not exclude lost time.)
         Inactive: None

 Time Lost During This Period (days):
         Unauthorized absence: 92 day s
         Confinement:              39 day s

Age at Entry: 18

Years Contracted: 4

Education Level: 12                                 AFQT: 35

Highest Rank: LCpl                                   MOS: 1833

Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 4 . 5 ( 5 )                       Conduct: 4 . 5 ( 5 )
Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as stated on the DD Form 214): Rifle Sharpshooter Badge, Meritorious Mast


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 :

971112:  Physical Standards waiver recommended.

971114 :  Physical Standards waiver approved.

991019:  Applicant to unauthorized absence at 0630 on 991019.
991019:  Applicant declared a deserter as of 0630, 991019.
00012 0 :  Applicant from unauthorized absence at 12 00 on 000 12 0 ( 94 days/surrendered).
000209:  Pretrial confinement from 000209 to 000319 [Extracted from DD Form 214] .

000320 :  Special Court Martial [trial dates 000 32 0]
          Charge I: violation of the UCMJ, Article 86.
         Specification: Did, on or about 991019, without authority, absent himself from his unit, until 000119. Pleas: Guilty. Finding s : Guilty .
         Additional Charge I: violation of Article 86, UCMJ.
         Specification: Did, on or about 000120, without authority, absent himself from his unit, until 000209. Pleas: Guilty*. Findings: Guilty*.
         Additional Charge II : violation of UCMJ, Article 121, UCMJ .
          Specification: Did, on or about 000208, steal a motor vehicle, of a value in excess of $100.00, the property of Cpl G. S. D_, USMC. Pleas: Guilty** Findings: Guilty**.
         *Guilty, excepting the figure and word, “20 January,”substituting, therefore, the figure and word, “9 February;” further excepting the figure and word, “9 February;” substituting, thereof, the figure and word, “10 February.” Of the excepted figures and words: Not Guilty; of the substituted figures and words: Guilty; of the specification as excepted and substituted: Guilty.
         **Guilty, excepting the word, “steal” and substituting, therefore, the words, “wrongfully appropriate.” Of the excepted word: Not Guilty; of the substituted words: Guilty; of the specification as excepted and substituted : Guilty.
         Sentence: Confinement for 90 days , forfeiture of $ 670.00pay per month for 3 month s , reduction to E-1, Bad Conduct discharge.
          CA 010125 : T he sentence approved and , except for bad conduct discharge , ordered executed, but the execution of that portion of the sentence adjudging all confinement in excess of 45 days is suspended for a period of twelve months from the date of this action, at which time, unless sooner vacated, the suspended portion of the sentence will be remitted without further action. The accused will be credited 39 days against the sentence to confinement .
         
010125:  Applicant order ed to involuntary appellate leave.

0 10808 :  NMCCCA: Affirmed findings and sentence.

011107 :  Appellate review complete.
011120 :  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 20011120 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).

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, issues submitted, and post service accomplishments, 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. The Applicant can provide documentation to support any claims of post-service accomplishments or any additional evidence related to this 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 P1900.16F), 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 86 ( unauthorized absence for more than 30 days ) and 121 (wrongful appropriation).

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 Instruction 1332.28, you may submit a complaint in accordance with Enclosure (5) of that Instruction . You should read Enclosure (5) of the Instruction 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 Instruction 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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