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

 ex-Pvt, USMC
Docket No. MD02-00787

Applicant’s Request

The application for discharge review, received 020509, requested that the characterization of service on the discharge be changed to honorable.  The Applicant requested a personal appearance hearing before the board in the Washington National Capital Region.  The Applicant listed a civilian counsel as the representative on the DD Form 293.

Decision

A personal appearance discharge review hearing was conducted in Washington, D.C. on 030331.  After a thorough review of the testimony, records, supporting documents, facts and circumstances unique to this case, NDRB discerned no impropriety or inequity in the characterization of the Applicant’s service at the time of discharge.  However, after consideration of the Applicant’s substantial post-service accomplishments, good citizenship, and military record, the Board determined that partial relief was warranted on the basis of clemency.  The Board’s vote was unanimous that the character and narrative reason of the discharge shall change.  The discharge shall change to:  UNDER HONORABLE CONDITIONS (GENERAL)/SECRETARIAL AUTHORITY, authority:  MARCORSEPMAN Par. 6214.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as submitted

1. STATEMENT OF ISSUES FOR REVIEW

The issues for review in this case include:

Whether the NDRB should grant clemency to Applicant based upon his full acceptance of culpability for his past actions, post-service factors indicating his full rehabilitation, his quality of service and lack of aggravating circumstances.

Whether the clemency granted by the NDRB should include the recharacterization of the discharge of Applicant to that of Honorable.

Reconsideration is appropriate in this case and the standard of review should be de novo.

Documentation

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

Brief from attorney
Letter of apology of Applicant, dated November 3, 2000
Character reference from T. J_ R_, Aeronautical System Team Leader, Defense Contract Management Agency, dated April 11, 2002
Character reference from Professor H_ C_, Ph.D., dated May 12, 2000. (2 copies)
Character reference from D_ D. B_, Administrator of Department of Administrative Services for the City of Columbus, dated October 13, 1989
Character reference from attorney C. M_ W_, dated October 13, 1995
Character reference from Mayor of City of Columbus, D_ G. R_, dated September 13, 1989
Character reference from Deputy Director of City of Columbus Office of Management and Budget, R_ W_, dated May 3, 1989
Character reference from Police Security Officer for the Mayor of the City of Columbus, D_ A_, dated April 24, 1989
Character reference from Executive Assistant to the Mayor of the City of Columbus, K_ H_, dated April 14, 1989
Master of Business Administration, Brentwick University, May 12, 2000 (2 copies)
Bachelor of Arts in Business Administration, Brentwick University, May 10, 1996 (2 copies)
Certified Professional Property Administrator, National Property Management Association, Inc., dated January 10, 1996
Certified Public Purchasing Officer, Universal Public Purchasing Certification Council, dated October 1, 1995
Certified Professional Public Buyer, Universal Public Purchasing Certification Council, dated September 1993
Ohio Paralegal Academy, certified specialist in Legal Research, dated May 1989
Certificate of Training, Universal Public Purchasing Certification Council, Action Negotiations, dated March 31, 1994
Achievement Award, National Association of Purchasing Management, Negotiating Skills, dated February 17, 1994
Certificate of Achievement, American Management Association, Inventory Management And Control, dated December 20, 1993 (2 copies)
Certificate of Achievement, American Management Association, Communication Skills For Managers, dated December 6, 1993 (2 copies)
Certificate of Achievement, American Management Association, Leadership Skills For Executives, dated December 6, 1993 (2 copies)
Certificate of Achievement, American Management Association, What Managers Do, dated December 6, 1993 (2 copies)
Certificate of Achievement, American Management Association, Purchasing Management, dated November 29, 1993 (2 copies)
Certificate of Achievement, American Management Association, How To Plan And Manage Warehouse Operations, dated November 29, 1993 (2 copies)
Certificate of Training, National Institute of Government Purchasing, Inc., dated June 21-25, 1993 (2 copies)
Certificate of Achievement, The Dun & Bradstreet Corporation Foundation Business Education Services
Character reference from Captain A_ M. M_, U. S. Marine Corps, dated March 11, 1987 (2 copies)
Character reference from First Sergeant R_ B. N_, U. S. Marine Corps, dated March 11, 1987 (2 copies)
Character reference from First Sergeant J. L. M_, U. S. Marine Corps, dated February 2, 1987 (2 copies)
Character reference from Gunnery Sergeant L_ J. G_, U. S. Marine Corps, dated February 2, 1987 (2 copies)
Character reference from Staff Sergeant F_ E. M_, U. S. Marine Corps, dated January 2, 1987 (2 copies)
Certificate of Commendation, USMC, dated February 6, 1986
Meritorious Mast, USMC, dated June 14, 1984.
Letter of Appreciation, Comptroller Division, Marine Corps Logistics Base, dated January 6, 1984.
Meritorious Mast, USMC, dated October 11, 1983.
Letter from Applicant dated August 30, 2002
Forty-one pages from Applicant's service record
Applicant's résumé
Letter from Dr. F_ B_, Professor, Brentwick University dated January 11, 2000
Certificate of completion of Principles of Contract Pricing Course dated June17-20, 2002
Certificate of completion of Basics of Contracting dated March 8, 2002
Certificate of completion of Fundamentals of Systems Acquisition Management dated October 4, 2001
Certificate of Achievement dated April 7, 2001
Certificate of Achievement dated March 31, 2001
Certificate of Achievement dated March 24, 2001
Certificate of Achievement dated March 17, 2001
Certificate of completion of Leadership Management Developing People dated October 21, 1996
Certificate of completion of Leadership Management: Customer-Focused Teams dated August 31, 1996
Certificate of merit dated December 2, 1998
Certificate of completion of Performance Appraisal/Standards Dev dated November 23, 1998
Certificate of completion of Procurement - Program IV/BID Processing dated January 6, 1998
Certificate of completion of Procurement - Program II/Purchase Order dated December 10, 1997
Certificate of completion of Procurement - Program I/Requisition dated December 2, 1997
Certificate of Achievement dated October 22-23, 1997
Certificate of membership of the Society of Property Professionals since 1996
Certificate from International Who's Who of Professional Management to Applicant, the newest member dated 1996
Letter from General Electric Company, President, NPMA Ohio Valley Chapter dated January 31, 1996
Certificate of Certified Professional Property Administrator dated January 10, 1996
Certificate for Certified Public Purchasing Officer dated October 1, 1995
Certificate for Certified Professional Public Buyer dated September 1993
NIGP Code of Ethics
Certificate of Achievement dated November 1996
Achievement Award dated August 12, 1996
Certificate of completion of World Class Purchasing dated August 12, 1996
Achievement Award, undated
Achievement Award, undated
Achievement Award, undated
Diploma for Private Investigation dated March 18, 1996
Certificate of completion of Records Management Training dated May 23, 1995
Certificate of completion of OSHA-Supervisors Workshop dated January 10, 1995
Certificate of Training Excellence dated November 16, 1994
Certificate of Training dated September 26-30, 1994
Certificate of completion of Purchasing Management Technology dated September 9, 1994
Student Academic Record from Franklin University
Franklin University Transfer Credit Evaluation
Paper titled College of Business and Technology
Certificate of completion of Vender/Procurement Training dated March 7, 1994
Official transcript from Ohio Paralegal Academy dated October 4, 1989
Certificate of completion of General Practice Paralegal Program dated October 1989
Letter from Department of Education, State of Georgia dated June 1, 1982
High School Equivalency Certificate dated June 1, 1982
Certificate for personal excellence and dedicated service "Team of the Quarter," dated January 2003
Reward and recognition form, dated December 11, 2002
Certificate for personal excellence and dedicated service "Time Off Award", dated January 2003
Memorandum re: Applicant for RFTC, Level I, Contracting dated August 12, 2002
Certificate for certified acquisition professional, dated August 12, 2002
Performance appraisal for FY 2000, dated July 21 2000 (4 pages)
Performance appraisal, employee self evaluation, dated May 4, 2000 (4 pages)
Performance appraisal for FY 1999. dated April 6, 1999 (5 pages)
Performance appraisal, employee self evaluation, dated April 1, 1999 (4 pages)
Performance rating for FY 2002, dated April 8, 2002
Performance rating for FY 2003, dated January 31, 2003

PART II - SUMMARY OF SERVICE

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

	Inactive: USMCR(J)		780719 – 790201	COG
	Active:   USMC		790202 - 820216	HON
	Active:   USMC		820217 - 840813	HON

Period of Service Under Review:

Date of Enlistment:  840814		Date of Discharge:  890303

Length of Service (years, months, days):

	Active:    04  06  20
	Inactive:  None

Age at Entry:  24			Years Contracted:  6

Education Level:  11 GED		AFQT:  69

Highest Rank:  Sgt

Final Enlisted Performance Evaluation Averages (number of marks): The enlisted performance reports were available to the Board for review.

Military Decorations:  None

Unit/Campaign/Service Awards:  NAM, GCM (2d Awd), LOA (2), SSDR, NUC (w/star), Rifle Expert 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:

840814:	Applicant reenlisted for 6 years.

861028:	Counseled for deficiencies in performance and conduct.  [Unauthorized absence from the scheduled PFT.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

870106:	Special Court-Martial [Dates of trial:  870105 and 870106]:
	Charge I: violation of the UCMJ, Article 92 (2 specifications):
	Specification 1: Failure to obey Marine Corps Base Order 5500.1C, by wrongfully possessing 5 pairs of nunchakus, two pair of sai's, two pairs of tonfa's, four throwing stars, and one retractable night stick.
	Specification 2: Failure to obey Marine Corps Base order 5500.1C by failing to register 20 assorted knives, all with a blade longer than 6 centimeters, 9 blow darts with blow gun, 4 samurai swords, 1 oar and 2 staff poles, 1 wooden staff pole with a metal hooking device on the end, 1 tri-staff, 1 knife buckle, and 1 brown handled sword.
Charge II: violation of the UCMJ, Article 121:
Specification:  Between 1 and 23 Oct 86, stole various items, property of the U.S. Government, of a value of about $146.21.
	Findings:  to Charge I and II and specifications thereunder, guilty.
	Sentence: Forfeiture of $200.00 pay per month for 2 months, confinement for 60 days, reduction to Pvt, and a bad conduct discharge.
	CA 870518:  Sentence approved and ordered executed except for the BCD.

870401:	Applicant to involuntary appellate leave.

870831:	NC&PB denied clemency.

880429:	NMCCMR:  Affirmed findings and sentence.

881216:	COMA:  Petition for review denied.

890214:	SSPCMO:  Article 71c, UCMJ, having been complied with, bad conduct discharge ordered executed.

900228:	NDRB documentary record review Docket Number MD90-00312 conducted.  Determination:  discharge proper and equitable; relief not warranted.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 890303 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 by appellate review authority 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 at the time issued (D and E).

Issue 1.  The Board found that the Applicant’s post-service conduct was sufficiently creditable to warrant an upgrade of his characterization of service to under honorable conditions (general).  The Applicant’s career progression, strong references, educational achievements, and awards demonstrated that the Applicant possessed character and drive that was not always evident during his final tour of active duty.  A court-martial may not adjudge an administrative separation (such as a discharge under honorable conditions) as punishment.  Therefore, the Board found that the applicant’s narrative reason for separation should be changed to Secretarial Authority to support administrative details regarding his upgraded characterization of service.  However, the Board found that the Applicant’s post-service conduct does not sufficiently mitigate his misconduct while on active duty to warrant full relief in the form of an honorable discharge.  Therefore partial relief is granted.

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 P1900.16C), effective 821001 until 890626. 

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 92, failure to obey a lawful general order, and Article 121, larceny.

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