ex-, USMC

                  Current Discharge and Applicant’s Request

Application Received:  20090227
Characterization of Service Received:
Narrative Reason for Discharge:
Authority for Discharge:  MARCORSEPMAN

Applicant’s Request:  Characterization change to:
                   Narrative Reason change to:

                             Summary of Service

Prior Service:
Inactive:   USMCR (DEP)      19870309 - 19870316   Active:
19870317 - 19921203

Period of Service Under Review:
Date of Enlistment:  19921204     Age at Enlistment:
Period of Enlistment:   Years   Months
Date of Discharge:  19980819 Highest Rank:
Length of Service:    Year(s)    Month(s)  16  Day(s)
Education Level:       AFQT:  66
MOS:  0844
Proficiency/Conduct Marks (# of occasions):  NFIR  Fitness Reports:

Awards and Decorations (per DD 214):    Rifle  Pistol

Periods of UA: 19960814-19960819 (6 days)

NJP:

    - 19960228:  Article 134 (Failure to pay debts)
      Awarded:    Suspended:


    - 19960708:  Article 123a (Making and uttering worthless checks)
      Awarded:   Suspended:

SCM:

SPCM:

    - 19961107:  Article 108 (Selling military property), 2 specifications
      Article 121 (Larceny)
      Article 134 (False swearing)
      Sentence:  BCD; RIR E-1; FOP; CONF 100 Days (19961107-19961208, 32
             days)

CC:


Retention Warning Counseling:

    - 19960119:  For substandard performance while assigned to weight
             control.


    - 19960119:  For total disregard in paying DPP/civil creditors.



                    Types of Documents Submitted/reviewed

Related to Military Service:
              DD 214:                                    Service/Medical
Record:             Other Records:

Related to Post-Service Period:
      Employment:                 Finances:
Education/Training:
      Health/Medical Records:           Substance Abuse:
Criminal Records:
      Family/Personal Status:           Community Service:
References:
              Additional Statements:
                             From Applicant:       From Representation:
      From Congress member:

                    Other Documentation:




                           DEPARTMENT OF THE NAVY
                     NAVAL DISCHARGE REVIEW BOARD (NDRB)
                    DISCHARGE REVIEW DECISIONAL DOCUMENT

                             Applicant’s Issues

1.  Inequitable discharge based on an isolated incident.

                                  Decision

Date:  20090604        Location: Washington D.C.    Representation:

By a vote of  the Characterization shall  .
By a vote of  the Narrative Reason shall  COURT-MARTIAL.

                                 Discussion

:  ()  .  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.
In response to the Applicant’s clemency request, relevant and material
facts stated in a court-martial specification are presumed by the NDRB to
be established.  The Applicant contends his discharge was inequitable
because it was based on one isolated incident in 116 months of service with
no other adverse actions.  The Applicant was charged and convicted for
offenses that included misappropriating government property.  He claims he
only pawned unused field rations [Meals-Ready-to-Eat (MREs)] that were
issued to him.  The Applicant’s case was considered under the pertinent
standards of equity to determine if any factors in this particular case
merited clemency.  The Applicant’s record of service was marred by two
retention warnings (weight control and financial debt failures); two non-
judicial punishments (NJPs) for violations of Uniform Code of Military
Justice (UCMJ) Article 123a (making and uttering worthless checks) and
Article 134 (false swearing); and one special court-martial (SPCM) for
violations of UCMJ Article 108 (selling military property), Article 121
(larceny), and Article 134 (false swearing).  Due to the severity of these
offenses, the command referred the Applicant for court-martial vice
administrative discharge.

After reviewing the Record of Trial from the SPCM, the Board determined
that all of the Applicant’s statements on his DD Form 293 (request for
discharge review) contradicted the facts established during his court-
martial.  Specifically, the Applicant did admit to stealing ten cases of
MREs on two occasions, for a total of twenty cases of MREs (worth
$1355.40), which he knowingly sold to a pawn shop.  The Applicant also sold
a M17A1 gas mask and a Mission Oriented Protective Posture (MOPP) suit
(worth $139.44) to an Army surplus store, which again he knew was not his
property to sell.  As evidenced by these multiple findings, NJP findings,
and documented weight control and debt failure, the Applicant’s discharge
was clearly not the result of an isolated incident as he contended.  Based
on the Applicant’s lack of integrity, the Board determined that clemency is
not warranted.

As previously noted through correspondence to the Applicant, the NDRB is
authorized to consider post-service factors in consideration if a case
warrants clemency.  Outstanding post-service conduct, to the extent such
matters provide a basis for clemency, are considered during Board reviews.
Supporting documentation to help support post-service clemency includes,
but is not limited to: a verifiable continuous employment record; marriage
and children’s birth certificates (if applicable); character witness
statements; documentation of community or church service; certification of
non-involvement with civil authorities; evidence of financial stability or
letters of good standing from banks, credit card companies, or other
financial institutions; attendance at or completion of higher education
(official transcripts); and documentation of a drug-free lifestyle.  The
Applicant is advised that completion of these items alone does not
guarantee clemency will be granted, as each discharge is reviewed by the
Board on a case-by-case basis to determine if post-service conduct
justifies clemency.

Besides his DD Form 293, the Applicant provided only in-service
documentation and failed to provide any post-service documentation on his
behalf.  The Applicant could have produced additional evidence as stated in
the above paragraph.  Should the Applicant obtain additional evidence or
post-service documentation, he may wish to apply for a personal appearance.
 Veterans organizations such as the American Legion will provide guidance
to former service members in their efforts to obtain clemency.

After a thorough review of the available evidence, to include the
Applicant’s summary of service, service record entries, discharge process
and evidence submitted by the Applicant, the Board determined that a Bad
Conduct Discharge was appropriate considering the length of service, the
UCMJ violations involved, and the lack of post-service documentation.

                          Pertinent Regulation/Law

A.  Paragraph 1105, DISCHARGE ADJUDGED BY SENTENCE OF COURT-MARTIAL, of the
Marine Corps Separation and Retirement Manual, (MCO P1900.16E), effective
18 August 1995 until 31 August 2001.

B.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval
Discharge Review Board (NDRB) Procedures and Standards, Part IV, Para
403m(7)(a), Presumption Concerning Court-Martial Specifications.

C.  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 V, Para 502, Propriety and Para 503,
Equity.

D.  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 that include: Article
108 (selling military property), Article 121 (larceny), Article 123a
(making and uttering worthless checks), Article 134 (false swearing) and
Article 134 (failure to pay debts).


                  ADDENDUM:  Information for the Applicant

Complaint Procedures:  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 to the Joint Service Review Activity, OUSD (P&R) PI-LP,
The Pentagon, Washington, DC  20301-4000.  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.”

Additional Reviews:  Subsequent to a document review, former members are
eligible for a personal appearance hearing, provided the 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.  If a former member has been discharged for more than 15 years,
has already been granted a personal appearance hearing or has otherwise
exhausted his opportunities before the NDRB, the Applicant may petition the
Board for Correction of Naval Records (BCNR), 2 Navy Annex, Washington, DC
20370-5100 for further review.

Service Benefits:  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.

Employment/Educational Opportunities:  The NDRB has no authority to upgrade
a discharge for the sole purpose of enhancing employment or educational
opportunities.  Regulations limit the NDRB’s review to a determination of
the propriety and equity of the discharge.

Reenlistment/RE-code:  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.  Only the Board for Correction of Naval Records (BCNR)
can make changes to reenlistment codes.  Additionally, the NDRB has no
authority to upgrade a discharge for the sole purpose of enhancing
reenlistment opportunities.  An unfavorable “RE” code is, in itself, not a
bar to reenlistment.  A request for a waiver can be submitted during the
processing of a formal application for reenlistment through a recruiter.

Medical Conditions and Misconduct:  DoD disability regulations do not
preclude a disciplinary separation.  Appropriate regulations stipulate that
separations for misconduct take precedence over potential separations for
other reasons.  Whenever a member is being processed through the Physical
Evaluation Board, and subsequently is processed for an administrative
involuntary separation or is referred to a court-martial for misconduct,
the disability evaluation is suspended.  The Physical Evaluation Board case
remains in suspense pending the outcome of the non-disability proceedings.
If the action includes either a punitive or administrative discharge for
misconduct, the medical board report is filed in the member’s terminated
health record.  Additionally, the NDRB does not have the authority to
change a narrative reason for separation to one indicating a medical
disability or other medical related reasons.”  Only the Board for
Correction of Naval Records can grant this type of narrative reason change.

Automatic Upgrades - There is no law or regulation, which provides that an
unfavorable discharge may be upgraded based solely on the passage of time
or good conduct in civilian life subsequent to leaving Naval service.  The
NDRB is authorized to consider post-service factors in the
recharacterization of a discharge to the extent such matters provide a
basis for a more thorough understanding of the Applicant’s performance and
conduct during the period of service under review.  Examples of
documentation that may be provided to the Board include proof of
educational pursuits, verifiable employment records, documentation of
community service, credible evidence of a substance free lifestyle and
certification of non-involvement with civil authorities.

Issues Concerning Bad-Conduct Discharges (BCD) – Because relevant and
material facts stated in a court-martial specification are presumed by the
NDRB to be established facts, issues relating to the Applicant’s innocence
of charges for which he was found guilty cannot form a basis for relief.
With respect to a discharge adjudged by a special court-martial, 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
NDRB does not have the jurisdictional authority to review a discharge or
dismissal resulting from a general court-martial.

Board Membership:  The names and votes of the members of the NDRB 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