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

 ex-Pvt, USMC
Docket No. MD99-01055

Applicant’s Request

The application for discharge review, received 990729, requested that the characterization of service on the discharge be changed to general/under honorable conditions.  The applicant requested a documentary record discharge review.  The applicant designated the Veterans of Foreign Wars as his representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 000614.  After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, NDRB discerned no impropriety or inequity in the characterization of the applicant’s service.  The Board’s vote was unanimous that the character of the discharge shall not change.  The discharge shall remain:  BAD CONDUCT DISCHARGE/As a result of a courts-martial (SPCM) – Other, authority: MARCORSEPMAN Par. 1105.

The NDRB did note an administrative error on the original DD Form 214.  Block 12a, Date Entered AD This Period, should read:  "87 12 07" vice “88 01 06".  Block 29, Dates of Time Lost During This Period, should read:  “The original DD Form 214 should be corrected or reissued as appropriate: “(74) 890410-890623” vice “(21) 880930-881021 (73) 890410-890623”.  The original DD Form 214 should be corrected or reissued as appropriate.  

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

1.  The Joint Brig Disposition Board met on 8090621 to consider request for restoration and clemency.  The board voted two to one in favor of clemency in the form of remission of his punitive discharge and separation with a general discharge.  In this decision the board felt that the offense did not fit the punishment awarded.
A "bad conduct discharge" is not warranted; punishment much too severe for offenses!

2.  Prisoner's Progress Summary Data (DD Form 1477), 890414.  In that summary quoted:  He has been rated by the staff of the Joint Forces Brig as "above average in the areas of Initiative, Work Habits and Attitude.  He has not been the subject of any disciplinary reports to date and has had only two unsat spot evaluation for minor rule violation.  He has been the subject of seven sat spot evaluation for "outstanding work and uniform".  In the DD Form 1477/890414, counselor, S_ R. H_, SSgt, USMC, stated that "C_ (Applicant) is requesting to be returned to duty on probation and upgrade of his punitive-discharge and separation with a general-discharge.  It is felt (personal opinion) that the sentence should remain as adjudged due to nature of the offense and it -is felt (again personal opinion - - potentially prejudicial) that "he could become a constance disciplinary problem".  All this personal recommendation as a counselor narrated that I would potentially be a constant disciplinary problem although I had repeatedly been rated by the staff of the Joint Forces Brig as "above average" in initiative, work habits, attitude, outstanding work and uniform.
Obviously, these are not supposed to be traits of a good MARINE!   I certainly cannot discern how a counselor could prejudice my potential discharge upgrade and return to active duty on totally unsubstantiated personal opinion that I would "become a constant disciplinary problem".

3.  Reference Prisoner's Admission Summary Data, DD Form 1478, 890414.  Note that this form was also completed by S_ R. H_, USMC, Counselor, SSgt.  IMPRESSIONS BASED ON PERSONAL HISTORY:  C_ (Applicant)'s present situation appears to stem from his lack of responsibility and poor common sense (purely a judgement of character and integrity by counselor).  A counselor is supposed to be non-judgemental and make impartial evaluations.

4.  ALLEGED VIOLATIONS:  Article 86, UA from appointed place of duty; Article 92 - breaking restriction; Article 121 - larceny and Article 128 - Assault.  SCMO # 28-89 22 Aug 1989, makes reference to Article 111, UCMJ; Finding Not Guilty.  (allegation - did operate a vehicle in a reckless manner).  This was Charge #1.  Note that it differs from Articles 86 & 92.  Specification/Charge I and Charge III, Violation of Article 128 appear most contradictory.  I was found "NOT GUILTY on the specification that I did operate a vehicle in a reckless manner" but was found GUILTY of having assaulted Lance Corporal J. A. R_ and Corporal P. M. H_, USMC, by driving directly at them while operating a vehicle, thereby causing them to jump of the way to avoid being struck by the vehicle.

On the one hand, I didn't operate a vehicle in a "reckless manner" and in another version of that same incident, was found GUILTY of intentionally driving a vehicle in a reckless manner with the intent of hitting two Marines.

It's difficult to be found both GUILTY and NOT GUILTY of driving a vehicle in a "reckless manner" during the same incident!

5. Charge II, Violation of Article 121 UCMJ, GUILTY!  Specification, Did between -1 and 31 December 1988, steal a watch, of a value of about $30.00, the property of Lance Corporal K.M. M_, USMC.  Finding: GUILTY.

It is difficult for me to comprehend how I was able to steal a watch sometime during the month of December.  Obviously, there were no witnesses or there would have been a SPECIFIC date on which I was observed taking the watch.  I did find the watch and did not know to whom it belonged.  But, since it was later found "in my possession", I was found guilty of having stolen it (LARCENY--took the personal property of another person (i.e.watch) with intent to deprive the rightful owner of it permanently!

6. Because I did not "ADMIT" to having purposefully stolen the watch
of Lance Corporal K.. M. M_, USMC and recklessly driving a vehicle directly at
Lance Corporal J.A. R_ and Corporal P. M. H_ with intent to do harm, my COUNSELOR characterized as a "lack of responsibility and poor common sense".  It is reasonable to conclude, after having read my records in detail, that had I admitted to stealing the watch and intentionally driving towards Lance Corporal R_ and Corporal H_, I would have been "accepting responsibility for my actions", that clemency may have been granted and request for restoration granted".

7. Although  the Joint Forces Brig, Disposition Board did meet on 890621 and voted two to one in favor of clemency, the Naval Clemency and Parole Board made their decision to "deny clemency and restoration".

It is only reasonable that, since they obviously disagreed with the Joint Forces Brig Disposition Board recommendation that I be separated with a General Discharge because the offenses did not fit the punishment awarded, I be provided some "narrative reasons and bases" for their decision.

It is my personal opinion that the military (DOD) system of redress and grievance is more theory and propaganda than any reasonable attempt at justice.  One should be presumed innocent until found guilty by a preponderance of evidence rather than judgement based on circumstantial evidence.  Most unfortunately, I feel that we are "presumed guilty" and have the burden of proof of our innocence.  That becomes most difficult when it is your word against others (perhaps senior in grade or in more influential positions).

But, if "we own up to our weaknesses by admission of guilt, then we are "good marines" and warrant forgiveness (pardon).  But, if we don't readily admit guilt when charged, were suspect and must be discharged for the good of the Corps.  This is a much too frequent scenario.

There weren't any ways at the Courts Martial or presently to prove my innocence with respect to charges preferred.  Apparently I was unable to convince those sitting, in judgement that I had not committed the offenses charged.

I still maintain my innocence and wanted to remain in the USMC.  I did not want to be discharged-under negative conditions.  I tried being a model prisoner while in confinement to convince my superiors that I was worthy of being a "marine".  I was confirmed as an "above average" prisoner and that warranted a recommendation by the Joint Forces Brig Disposition Board of "separation with a GENERAL DISCHARGE".

Unfortunately, the personal negative opinions of others prevailed and I was given a BAD CONDUCT DISCHARGE.

Considering that I was found Guilty of violations of Articles 121 and 128, UCMJ, based on circumstantial evidence, my separation from the USMC was obvious and inevitable.

But, I simply cannot comprehend having been given a BAD CONDUCT DISCHARGE when one looks at my total military history and the alleged offenses.

I feel that I should have been given a GENERAL DISCHARGE UNDER HONORABLE CONDITIONS!

Submitted by VFW:
8.  IAW SECNAV Instruction 5420.174C of 22 August 1984 (MDR 1984), enclosure (1), chapter 9, paragraph 9.3, Equity of Discharge, we ask the board to consider the following factors:
•	The applicant received a prior honorable discharge for release from initial tour and active duty for training.
•	His average proficiency and conduct marks were excellent with an overall 4.4//4.4.
•	Post-service conduct.
Given the aforementioned factors, we ask the Board for Clemency.

Documentation

In addition to the service record, the following additional documentation, submitted by the applicant, was considered:

VFW ltr of comments/recommendation dated Apr 20, 2000
Copy of DD Form 214
NPRC St Louis ltr to Senator's R_ dtd Jan 29 , 1999 providing copy of applicant's service record
Applicant's ltr to Senator R_ dtd 20 Jan 1999
Applicant's request of 24 Aug XX to NPRC for copy of service record
Applicant's request of 21 Sep 92 to NPRC for copy of service record
Copy of Applicant's military service record
VFW ltr of 13 Apr 99 to Applicant with enclosed completed DD Form 293
Character Reference ltr from A_ M. O_, Deputy Sheriff, dtd May 5, 2000
Character Reference ltr from co-worker, I_ R_, undated
Character Reference ltr from employer, S_ D_, Christiana Care Health Services dtd May 19, 2000
Employment verification from Christiana Care Health Services dtd 26 April 2000
Petition of Character References (contains 14 names)

PART II - SUMMARY OF SERVICE

Prior Service (component, dates of service, type of discharge):

	Active:   USMCR		861119 - 870214	RELACDU
	Inactive: USMCR		860508 - 861118	REP ACDU
					870215 - 871206	COG - ENLIST USMC

Period of Service Under Review:

Date of Enlistment:  871207		Date of Discharge:  910809

Length of Service (years, months, days):

	Active:  03  08  03 (Doesn't exclude UA/confinement time)
	Inactive:  None

Age at Entry:  20			Years Contracted:  4 

Education Level:  12			AFQT:  55

Highest Rank:  LCpl

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  4.4 (4)		Conduct:  4.4 (4)

Military Decorations:  None

Unit/Campaign/Service Awards:  Rifle Expert Badge, SSDR

Days of Unauthorized Absence: 74 days confinement

Character, Narrative Reason, and Authority of Discharge (at time of issuance):

BAD CONDUCT DISCHARGE/As a result of a courts-martial (SPCM) - Other, authority:  MARCORSEPMAN Par. 1105.

Chronological Listing of Significant Service Events:

871207:	Reenlisted USMC for term of four years and issued travel orders to report to Commanding Officer Student Infantry Training Course Camp Pendleton, CA for duty no later than 2400 hours on 6 January 1988 for further assignment to Commanding General, Third Marine Division, Okinawa, JA.  Applicant authorized 30 days delay to be charged as annual leave and one day travel via Commercial Air.

880930:	Unauthorized absence from HQBN 3D MARDIV FMF since 0731 this date.

881021:	Applicant surrendered at 1500 this date (22 days).

890223:	Period of absence from 0730, 880930 to 1500, 881021 has been determined as unavoidable and will be charged as leave.

890301:	NJP for violation of UCMJ, Article 121: on or about 1943 17FEB89 commit larceny by fraud.
Awarded forfeiture of $400.00 per month for 2 months, restriction for 16 days, reduction to E-2 (suspended for a period of 6 months).  Not appealed.

890318:	Suspension of NJP imposed and suspended on 890301 or period of 6 months vacated and punishment ordered executed.

890410:	Pre-trial confinement.

890525:	Special Court-Martial.
	Charge I:  violation of the UCMJ, Article 111:
	Specification:  did on or about 9APR89 operate a vehicle in a reckless manner.
	Charge II:  violation of the UCMJ, Article 121: 
	Specification: did on or between 1-31DEC88, steal a watch of a $30.00 value.
	Charge III:  violation of the UCMJ, Article 128:
	Specification:  did on or about 9APR89 assault LCpl R_ and Cpl H_ by increasing speed and driving directly at them while operating a passenger vehicle forcing them to jump out of the way to avoid being struck.
	Findings:  to Charge I and specification thereunder, not guilty.  
To Charge II and specification thereunder, guilty.  
To Charge III and specification thereunder, guilty.
	Sentence:  Confinement for 45 days, forfeiture of 250.00 pay per month for 4 months, reduction to E-1, and a bad conduct discharge.
	CA 890822:  Sentence approved and ordered executed except for the BCD.
	
890823:	To appellate leave.

891031:	NC&PB denied clemency and restoration.

910131:	NMCCMR:  Affirmed findings and sentence.

910716:	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 910809 with a bad conduct discharge which was the sentence adjudged by a properly constituted special court martial that was determined to be legal and proper, affirmed in the legal chain of review and executed (A and B).  The Board presumed regularity in the conduct of governmental affairs (C).  After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, the Board found that the discharge was proper and equitable (D and E).

The applicant’s issues address the facts and actions of the court-martial and the appeal process.  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. (B, Part IV)   The applicant's case was considered under the pertinent standards of equity to determine if any factors in this particular case merited clemency.  The NDRB found the applicant’s service record devoid of any mitigating or extenuating factors sufficient to offset the seriousness of the offenses for which the discharge was awarded. Relief denied.

The following is provided for the applicant’s edification.  The NDRB is authorized to consider post-service factors in the recharacterization of a discharge (E).  The applicant must be aware that 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 the civilian life subsequent to leaving the service. Outstanding post-service conduct, to the extent that such matters provide a basis for a more thorough understanding of the applicant’s performance and conduct during the period of service under review, may be considered by the NDRB.  Documentation of such service is required.  The applicant is reminded that he is eligible for a personal appearance hearing provided the application is received within 15 years from the date of discharge.  Representation at personal appearance hearing is highly recommended.

Pertinent Regulation/Law (at time of discharge)

A.  Paragraph 1105, DISCHARGE ADJUDGED BY SENTENCE OF COURTS-MARTIAL, of the Marine Corps Separation and Retirement Manual, (MCO P1900.16D), effective 27 Jun 89 until 17 Aug 95.

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 [ e.g., Article 86, unauthorized absence for more than 30 days].

C.  Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 2, AUTHORITY/POLICY FOR DEPARTMENTAL DISCHARGE REVIEW.  

D.  Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 9, paragraph 9.2, PROPRIETY OF THE DISCHARGE.

E.  Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 9, paragraph 9.3, EQUITY OF THE DISCHARGE.

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 obtain a copy of DoD Directive 1332.28 by writing to:

		DA Military Review Boards Agency
		Management Information and Support Directorate
		Armed Forces Reading Room
		Washington, D.C.  20310-1809

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:

		Naval Council of Personnel Boards
		Attn:  Naval Discharge Review Board
		Washington Navy Yard
		720 Kennon Street SE Rm 309
		Washington, D.C.  20374-5023