Search Decisions

Decision Text

USMC | DRB | 2006_Marine | MD0600950
Original file (MD0600950.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. MD06-00950

Applicant’s Request
The application for discharge review was received on 20060705 . 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 20070510 . 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 character 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 – Characterization of service was too harsh

Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant’s DD Form 214 (Service 2)
Reference Letter from N_ H_, dtd June 2, 2006
Reference Letter from D_ W_

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USMCR (DEP)    20010501 - 20010923       COG
          Active: None
Period of Service Under Review :
Date of Enlistment: 20010924              Date of Discharge: 20050826

Length of Service (years, months, days):

 Active: 0 3 11 29 (Does not exclude lost time.)
         Inactive: None

 Time Lost During This Period (days):
         Unauthorized absence: 34 day s
         Confinement:              47 day s

Age at Entry: 1 9

Years Contracted: 4

Education Level: 12                                 AFQT: 41

Highest Rank: PFC                                    MOS: 6046

Final Enlisted Performance Evaluation Averages (number of marks):

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

*Not Available


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 :

02062 5 :  NJP for violation of UCMJ, Article 80: Attempted u nauthorized absence, in that SNM did on or about 1615, 020421 attempt to absent himself w/o proper authority.
 Award: Not found in record . Not appealed.
020724:  NJP for violation of UCMJ, Article 86: UA/AWOL, in that SNM did absent himself without proper authority on or about 1601 , 020713 and surrendered himself on or about 2359, 020713
 Violation of UCMJ, Article 86: UA/AWOL, in that SNM did absent himself without proper authority on or about 0200 , 020718 and surrendered himself on or about 0400, 020718.
 Violation of UCMJ, Article 86: UA/AWOL, in that SNM did absent himself without proper authority on or about 1 200 , 02071 3 and surrendered himself on or about 1107 , 02071 4 .
 Violation of UCMJ, Article 86: UA/AWOL, in that SNM did absent himself without proper authority on or about 0700 , 020718 and surrendered himself on or about 1400, 020718.
          Award: Forfeiture of $ 257. 00 pay per month for 1 month, restriction and extra duty for 14 days. Not appealed.
021023 :  NJP for violation of UCMJ, Article 90 : Disobeying a lawful order by a superior commissioned officer .
 Award: Forfeiture of $ 522. 00 pay per month for 2 month s , restriction and extra duty for 45 days, reduction to E- 1 . Not appealed.
040503 :  Special Court Martial .
         Charge I: violation of the UCMJ, Article 107 .
          Specification: On or about 030924, with intent to deceive make an official statement, to wit: denying culpability for stealing Sergeant T_ S. H_’s, U.S. Marine Corps, Military Star credit card, which statement was totally false. Plea : Guilty. Findings : Guilty.
         Charge II: violation of the UMCJ, Article 121 .
          Specification: On or about or between 030809, steal a Military Star credit card, the property of Sergeant T_ S. H_,. Plea : Guilty. Findings : Guilty , except for the word “steal” and substituting therefore “wrongfully appropriate”. To the excepted language NOT GUILTY, to the substituted language GUILTY, to the specification as excepted and substituted, GUILTY.
         Charge III : violation of the UCMJ, Article 123 ( 2 specifications).
         Specification 1: On or about 030809, with intent to defraud, falsely make the signature of Sergeant T_ S. H_. Plea : Guilty. Findings : Guilty.
         Specification 2: On or about 030809, with intent to defraud, falsely make the signature of Sergeant T_ S. H_. Plea : Guilty. Findings : Guilty.
         Charge IV: violation of the UCMJ, Article 134 ( 4 specifications)
         Specification 1: On or about 030817, with intent to defraud, falsely pretend to Domino’s Pizza that the accused had legal authority to conduct telephonic charges to the Navy Federal Credit Union Sharecheck account of Sergeant T_ S. H_. Plea : Guilty. Findings : Guilty, except for the words “$28.10: and substituting therefore “$2.00”, except for the word “delivered” and substituting therefore: “ delivery service”. To the excepted language, NOT GUILTY, to the substituted language GUILTY, to the speci f i c ation as excepted and substituted, GUILTY .
         Specification 2: On or about 030824, with intent to defraud, falsely pretend to Domino’s Pizza that the accused had legal authority to conduct telephonic charges to the Navy Federal Credit Union account of Sergeant T_ S. H_, did wrongfully obtain from Domino’s Pizza of Beaufort, South Carolina, services, of a value of about $26.01. Plea : Guilty. Findings : Guilty, except for the words “$26.01: and substituting therefore “$2.00”, except for the word “delivered” and substituting therefore: “ delivery service”. To the excepted language, NOT GUILTY, to the substituted language GUILTY, to the specification as excepted and substituted, GUILTY.
         Specification 3: On or about 030830, with intent to defraud, falsely pretend to Domino’s Pizza that the accused had legal authority to conduct telephonic charges to the Navy Federal Credit Union account of Sergeant T_ S. H_, did wrongfully obtain from Domino’s Pizza of Beaufort, South Carolina, services, of a value of about $21.24. Plea : Guilty. Findings : Guilty, except for the words “$21.24: and substituting therefore “$2.00”, except for the word “delivered” and substituting therefore: “ delivery service”. To the excepted language, NOT GUILTY, to the substituted language GUILTY, to the specification as excepted and substituted, GUILTY.
         Specification 4: On or about 030 902 , with intent to defraud, falsely pretend to Domino’s Pizza that the accused had legal authority to conduct telephonic charges to the Navy Federal Credit Union account of Sergeant T_ S. H_, did wrongfully obtain from Domino’s Pizza of Beaufort, South Carolina, services, of a value of about $2 0 . 17 . Plea : Guilty. Findings : Guilty, except for the words “$2 0 . 17 : and substituting therefore “$2.00”, except for the word “delivered” and substituting therefore: “ delivery service”. To the excepted language, NOT GUILTY, to the substituted language GUILTY, to the specification as excepted and substituted, GUILTY.
          Sentence: Confinement for 90 days , forfeiture of $ 795. 00 pay per month for 3 month s , reduction to E-1, Bad Conduct discharge.
          CA 040930 : T he sentence is approved and except for the bad conduct discharge will be executed, however the execution of that part of the sentence adjudging confinement in excess of 60 days is suspended for a period of 6 months .
         
040504 :  Joined NAVCONBRIG, CHASN, SC for confinement.
0 40621 :  From confinement, restored to full duty.

040813 :  Applicant to appellate leave.
040930:  Applicant appellate leave status change to involuntary appellate leave.
0 50 33 1 :  NMCCCA: Affirmed findings and sentence.

0 50606 :  Appellate review complete.
0 50620 :  SSPCMO: Article 71c, UCMJ, having been complied with, Bad Conduct discharge ordered executed.

Service Record was missing elements of the Summary of Service.

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. 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).

Equity – Characterization of service was too harsh.

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, 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.

Since the NDRB has no jurisdiction over reenlistment, reentry, or reinstatement into the Navy, Marine Corps, or any other of the Armed Forces, the 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 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 s 90 (willfully disobeying lawful order of superior commissioned officer), 107 (false official statements), 123 (forgery) and 134 ) false pretenses, obtaining services under) .
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

Similar Decisions

  • ARMY | BCMR | CY2009 | 20090016469

    Original file (20090016469.txt) Auto-classification: Denied

    e. Additional Charge II, Article 134, Plea: Not Guilty. When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. The evidence of record does show the applicant was convicted by a GCM and he received a BCD.

  • USMC | DRB | 2005_Marine | MD0500330

    Original file (MD0500330.rtf) Auto-classification: Denied

    Not appealed.890607: NJP for violation of UCMJ, Article 92: Specification: In that SNM, having knowledge of a lawful order, failed to obey same by wrongfully driving on an unauthorized road with a government vehicle. 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. The...

  • NAVY | DRB | 2005_Navy | ND0500949

    Original file (ND0500949.rtf) Auto-classification: Denied

    After a thorough review of all available 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. After a thorough review of the Applicant’s record, issues, and post service accomplishments, the Board determined these factors insufficient to mitigate the seriousness of the offenses for which the discharge was awarded. The Manual for courts-martial authorizes 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.

  • 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...

  • NAVY | DRB | 2004_Navy | ND04-01277

    Original file (ND04-01277.rtf) Auto-classification: Denied

    ND04-01277 Applicant’s Request The application for discharge review was received on 20040809. The Applicant requests the Discharge Characterization of Service received at the time of discharge be changed to honorable. _______________________________________________________________________ In accordance with Title 32, CFR, Section 724.116 and SECNAVINST 5420.174D, Part I, Paragraph 1.20, The American Legion submits to the Naval Discharge Review Board (NDRB or Board) the above issue and...

  • USMC | DRB | 2000_Marine | MD00-00173

    Original file (MD00-00173.rtf) Auto-classification: Denied

    Documentation In addition to the service record, the following additional documentation, submitted by the applicant, was considered:Copy of DD Form 214 PART II - SUMMARY OF SERVICE Two months prior to the Special Court-Martial, while in Yuma, the applicant was found guilty of writing 29 worthless checks. 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...

  • 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...

  • USMC | DRB | 2006_Marine | MD0600922

    Original file (MD0600922.rtf) Auto-classification: Denied

    MD06-00922 Applicant’s Request The application for discharge review was received on 20060628. Decisional Issues Equity – Youth, alcohol problemEquity – 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) PART II - SUMMARY OF SERVICE Prior Service (component, dates of service, type of discharge): Inactive: USMCR (DEP) 19920316 - 19920413 COG Active: None Period of...

  • 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...