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

 ex-Pvt, USMC
Docket No. MD00-00307

Applicant’s Request

The application for discharge review, received 991115, 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 did not list any representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 000824.  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 28, Narrative Reason for Separation should read:  “As a result of a court-martial (SPCM) –Other” vice “Misconduct – Pattern of Misconduct (admin board required but waived”.  
Block 26, Separation Code should read:  “JJD2” vice “HKA1.”  The original DD Form 214 should be corrected or reissued as appropriate. 

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues (verbatim)

1.  My discharge was inequitable because it was based on one isolated incident in 14 yrs of service with no other adverse action.

Documentation

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

Copy of DD Form 214
Copy of Master Brief Sheet (2pgs) 

PART II - SUMMARY OF SERVICE

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

	Active:   USMC		750828 - 790329	HON
		   USMC		790330 - 820405	HON
		   USMC		820406 - 870928	HON
	Inactive: USMCR(J)		750827 - 750827	COG

Period of Service Under Review:

Date of Enlistment:  870929		Date of Discharge:  910920

Length of Service (years, months, days):

	Active:    03  11  22
	Inactive:  None

Age at Entry:  23			Years Contracted:  4 

Education Level:  12			GCT/CT:  84/90

Highest Rank:  SSgt

Final Enlisted Performance Evaluation Averages : All enlisted performance reports were available to the Board for review.

Military Decorations:  None

Unit/Campaign/Service Awards:  SSDRw1*, GCMw3*, Sharpshooter Rifle Badge, Sharpshooter Pistol Badge 

Days of Unauthorized Absence:  None 

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:

870929:	Reenlisted at MCB, Camp Pendleton, CA for 4 years

890518:	NJP for violation of UCMJ, Article 123: Did between 890228 and 890425, with intent to defraud and for the procurement of lawful currency, wrongfully and unlawfully utter 9 checks to the Marine Corps Exchange system equal up to $119.17 plus $135.00 in service charges, then know that he did not have sufficient funds in or credit with Wells Fargo Bank and Security Pacific National Bank for the payment of said checks in full upon presentment.
	Award:  Forfeiture of $500.00 per month for 2 months (suspended for 2 months).  Not appealed.

900130:	Special Court-Martial.
	Charge I: violation of the UCMJ, Article 86: Failed to go to appointed place of duty on or about 0700, 891201.  Charge II: violation of the UCMJ, Article 123: (39 Specs), Specifications 1-37, Between 891006 and 891028, with intent to defraud, wrongfully and unlawfully make and deliver 37 checks for a total amount of $1.085.71, Specification 38, On 891101 with intent to defraud, wrongfully and unlawfully make and deliver a check in the amount of $25.00, Specification 39, On 891012, with intent to defraud, wrongfully and unlawfully make and deliver a check in the amount of $23.60. Charge III: violation of the UCMJ, Article 121 (39 Specifications), Specifications 1-15, Between 891006 and 891105, steal U.S. currency for a total amount of $477.14 the property of Lucky Stores, Specifications 16-30, Between 891007 and 891028, steal U.S. currency for a total amount of $461.14 the property of Albertson's, Specifications 31-39, Between 891012 and 891101, steal U.S. currency for a total amount of $218.10 the property of MWR Activity 0140.
	Findings:  to Charge I and specification 1 thereunder, guilty.  To Charge II and specifications 1-39 thereunder, guilty.  To Charge III and specifications 1-39, withdrawn, Guilty, excepting the words "San Clemente and Albertson's" substituting therefore the words; "Marine Corps Base, Camp Pendleton" also substituting the words and numbers MWR Activity 0140"; of the excepted words, not guilty: of the substituted words and numbers, guilty; of specification 38 as excepted and substituted, guilty. 
	Sentence:  Confinement for 30 days, reduction to E-1, and a bad conduct discharge.
	CA 900824:  Sentence approved and ordered executed except for the BCD.
	
900130:	To confinement, Sentence of SPCM.

900223:	From confinement, to duty.

900926:	To appellate leave.

901204:	NC&PB denied clemency and restoration.

910320:	NMCCMR:  Affirmed findings and sentence.

910830:	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 910920 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).

In the applicant’s issue 1, 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.  The applicant is reminded that he remains eligible for a personal appearance hearing provided that an application is received within 15 years from the date of discharge.  No relief will be granted based on this issue. 

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 view DoD Directive 1332.28 and other Decisional Documents by going online at “afls14.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