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

 ex-Pvt, USMC
Docket No. MD01-01100

Applicant’s Request

The application for discharge review, received 010820, requested that the characterization of service on the discharge be changed to entry level separation or uncharacterized.  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 020417.  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

Prior to the documentary discharge review, the applicant introduced no issues as block 8 on the DD Form 293 is blank. 

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

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

	Active:   None
	Inactive: USMCR(J)		921113 - 930616	COG

Period of Service Under Review:

Date of Enlistment:  930617		Date of Discharge:  980225

Length of Service (years, months, days):

	Active:    04  07  08
	Inactive:  None

Age at Entry:  18			Years Contracted:  4

Education Level:  12			AFQT:  74

Highest Rank:  Cpl

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  4.5 (9)			Conduct:  4.4 (9)

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM, SSDR, AFSM

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:

931203:	NJP for violation of UCMJ, Article 128:
Specification: Assault PFC on 26Nov93, to wit: by striking her twice in the abdominal region.
Awarded forfeiture of $456.00 per month for 1 month, restriction and extra duties for 14 days.  Not appealed.

950614:	Counseled for deficiencies in performance and conduct  [Specifically driving on the state license suspension from both Tennessee and North Carolina.  At 2220, 17May95 you were apprehended by military police at the Midway Park Gate.  You further aggravated this incident by not being truthful in word or deed to your PLT Commander, PLT Sgt, or section head].  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

970127:	Special Court-Martial.
	Charge I: violation of the UCMJ, Article 109 (3 specs):
	Specification 1: Willfully and wrongfully damage a care window by forcefully striking it with his elbow on 8Sep96, the amount of said damage being in excess of $100.00, the property of E_ M_.
	Specification 2: Willfully and wrongfully damage a car window by forcefully striking it with his elbow on 8Sep96, the amount of said damage being in excess of $100.00, the property of Chief Warrant Officer 2.
	Specification 3: Willfully and wrongfully damage a car window by forcefully striking it with his elbow on 8Sep96, the amount of said damage being in excess of $100.00, the property of Gunner's Mate Guns 1.
	Charge II: violation of the UCMJ, Article 121 (2 specs):
	Specification 1: Steal one "Sony" brand portable CD player, and one automobile tape deck adapter on 8Sep96, of a value of more than $100.00, the property of E_ M_
	Specification 2: Steal one electric screwdriver, one pair of wire cutters, one hammer, and on crowbar, military property on 8Sep96, of some value, the property of the U.S. Army.
	Charge III: violation of the UCMJ, Article 134:
	Specification 1:Wrongfully impede an investigation, in the case of a Corporal on 8 Sep96 by receiving and disposing of a stolen cellular phone, the property of I_ N_
	Findings: to Charge I specification 1-2, Charge II specification 1 thereunder, guilty.  Charge I: Guilty, adding the words, "attempt to " before the word "willfully".  To the specification as added: Guilty; to the specification as written and completed: Not Guilty, that is guilty to the lesser included offense in Specification 3, Guilty of attempted willful destruction of private property, Charge II, Specification 2: Guilty of the named lesser included offense of wrongful appropriation, Charge III: Dismissed without prejudice prior to findings, to ripen into dismissal with prejudice upon announcement of the sentence.
	Sentence: Forfeiture of $600 per month for 4 months, confinement for 4 months, and a bad conduct discharge.
	CA 970528: Sentence approved and, except for that part of the sentence extending to a bad conduct discharge, will be executed; however, the execution of that portion of the sentence adjudging confinement in excess of 60 days will be suspended for a period of 12 months from the date of the convening authority's action, at which time, unless sooner vacated, the suspended portion of the sentence will be remitted without further action.

970127:	To confinement, Sentence of SPCM.

970317:	From confinement, to duty.

970612:	To appellate leave.

970821:	NC&PB denied clemency and restoration.

970919:	NMCCMR:  Affirmed findings and sentence.

980225:	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 980225 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 introduced no decisional issues for consideration by the Board.

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 applicant’s discharge characterization accurately reflects his service to his country.  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 relief, 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 109, damage non-government property; Article 121, larceny; Article 128, assault.

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