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

ex-Pvt, USMC
Docket No. MD00-00141

Applicant’s Request

The application for discharge review, received 991102, requested that the characterization of service on the discharge be changed to honorable.  The applicant requested 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 011018.  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/COURT-MARTIAL, authority: MARCORSEPMAN Par. 1105.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

1.  To Whom It May Concern.  I, R_ D_ C_ (Applicant), XXX-XX-XXXX.  This letter is in concern with my medical status.  My history with the U.S. Marine Corps was short and a rough one.  I have made a lot of mistakes in my past in which I was told that I would regret.  I do regret my actions in the Marines.  So I have spent the past 3 yrs trying to straighten up my life.  If there was a way to turn back the clock, I would.  Also if a decsion is made, and there is a possibility to rejoin the USMC, I would do whatever it takes to make a better impression on the U.S. Government.  I’m asking no I pleading for the USMC to consider changing my discharge, because I was in trouble for having a shoplifting problem in the Marines.  Since than I have curbed my ways.  I have plans of going back to school and continue my training in the aircraft mechanic area, and I feel it would better and further an open up my career opportunity, and in which would make me a beter citizen.  It won’t undo the mistakes that I have made.  I am at the point in my life where there is a chance to make better of my future and my children future, then I need to and will do whatever is necessary to make my future more productive.  Like I mentioned before, I can’t change my past I can only work for a better future.  My medical status is that it has been diagnose that I have Crones disease, which keeps me from doing hard labor jobs with construction.  This is why it is and could be a substantial decision in my life, and with the future of any new career that may be available to me coexisting with my health problems.  I want to thank you for considering my case.  All statements made are since, and straight from the heart.  I want to put my past behind me, and start building on my career to become a more productive citizen.  I ask with the utmost respect to the United States Government for mercy and compassion when asking your decision.  For I know that I have made a lot of bad choices before, but I am willing to change that.  Thank you for your time and patience.  My apologies for the bad and writing.  Thank You, Sincerely, (Applicant)

Documentation

Applicant’s service record could not be located.  Applicant was advised of this and the Board requesting he provide supporting documentation.  He did not respond to inquiry and he was advised that the Board would make a decision based only on the information contained in his court-martial.  Applicant did provide the following document:

Copy of DD Form 214

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: USMCR(J)		940916 - 950801	COG

Period of Service Under Review:

Date of Enlistment:  950802		Date of Discharge:  970728

Length of Service (years, months, days):

	Active:    01  11  27  (Doesn’t exclude lost, confinement or appellate leave).
	Inactive:  None

Age at Entry:  22			Years Contracted:  4 

Education Level: 12 (not verified)	AFQT:  Not known

Highest Rank:  Pvt

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  4.2 (1)			Conduct:  4.2 (1)

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM, Rifle Sharpshooter Badge

Days of Unauthorized Absence:  None

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:

960206:	NJP for violation of UCMJ, Article 121:  Larceny of non-appropriated funds property. Did on or about 1340, 25 Jan 96, steal four AT&T Telephone Calling Cards, valued at $40.00 each, the property of AAFES.
Awarded forfeiture of $435.00 per month for 1 month, restriction for 30 days.  Not appealed.

960228:	Counseled for deficiencies in performance and conduct [specifically on 960227 my unauthorized absence on returning form noon chow, inability to follow instructions relating to matters such as duty days, time off, and personal accountability to my superiors, displays a lack of trust, integrity, leadership, and reliability].  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

960402:	NJP for violation of UCMJ, Article 92:  underage drinking, did on or about 960317 violate MCO 1700.22C by wrongfully consuming alcohol under the legal age of drinking which is 21.
	Award:  Forfeiture of $200 per month for 2 months.  Not appealed.

960509:	NJP for violation of UCMJ, Article 86:  unauthorized absence, did absent himself from his appointed place of duty; violation of UCMJ, Article 92:  failure to obey a lawful order, did go out of bounds during the Easter 96 weekend.
	Award:  Forfeiture of $400 per month for 2 months.  Restriction and extra duty for 45 days.  Not appealed.

960509:	Counseled for deficiencies in performance and conduct [lack of self-discipline and use of poor judgment, specifically on 960117 you were find guilty of Articles 86 and 92].  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

960513:	Pre-trial confinement.

960711:	Special Court-Martial.
	Charge I:  violation of the UCMJ, Article 121 - Larceny of merchandise worth $143.96 on 11 May 96.
	Charge II:  violation of the UCMJ, Article 134 – Breaking restriction on 11 May 1996.
	Finding:  to Charge I and Charge II and the specification thereunder, guilty.
	Sentence:  Confinement for 150 days, forfeiture of $500.00 per month for 6 months and bad conduct discharge.
	Pretrial Agreement:  All confinement in excess of 100 days to be suspended for 12 months if BCD awarded and accused submits voluntary appellate leave request.  All else, as adjudged.
	CA action 961203:  Sentence approved and ordered executed but in accordance with the pretrial agreement, all confinement in excess of 100 days is suspended for 12 months from the date of trail, at which time, unless the suspension is sooner vacated, the suspended part of the sentence will be remitted without further action.  
	SA 000000:  Approved as approved by the CA. 

960711:	To confinement.

960729:	Requested release from confinement as soon as possible.

960804:	From confinement, to duty.

96xxxx:	To appellate leave.

970507:	NMCCMR:  Affirmed findings but provided sentence relief.  Affirm only so much of sentence as provides for confinement for 100days,forfeiture of $550 pay per months for 3 months and a bad conduct discharge.

970728:	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 970728 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).

Issue 1. 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 (C, 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 discharge was proper and equitable.  Normally, to permit relief, an error or injustice must have existed during the period of enlistment in question.  No such error or injustice occurred during the applicant’s enlistment.  Additionally, 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 the service.  However, the NDRB is authorized to consider outstanding post-service factors in the recharacterization of a discharge, 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.  Verifiable proof of any post-service accomplishments must be provided in order for the applicant to claim post-service conduct and behavior as a reason to upgrade a less than Honorable discharge.  Evidence of continuing educational pursuits, an employment record, documentation of community service, certification of non-involvement with civil authorities and proof of his not using drugs, are examples of verifiable documents that should have been provided to receive consideration for clemency, based on post-service conduct.  The applicant did not provide sufficient documentation to warrant an upgrade to his discharge.  He is reminded that he remains eligible for a personal appearance hearing, provided an application is received, at the NDRB, within 15 years from the date of his discharge.  The applicant can provide additional documentation to support any claims of post-service accomplishments at that time.  Legal representation at a personal appearance hearing is highly recommended but not required.  Relief denied.

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 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 121, larceny; Article 134, breaking restriction.

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 view DoD Directive 1332.28 and other Decisional Documents by going online at “afls10.jag.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:

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