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

ex-PVT, USMC
Docket No. MD02-01133

Applicant’s Request

The application for discharge review, received 020806, requested that the characterization of service on the discharge be changed to general/under honorable conditions.  The Applicant requested a personal appearance hearing discharge review before the Board in the Washington National Capital Region.  The Applicant listed Veterans of Foreign Wars as his representative on the DD Form 293.  In the acknowledgement letter to the Applicant, he was informed that the Naval Discharge Review Board (NDRB) first conducts a documentary review prior to any personal appearance hearing.  

Decision

A documentary discharge review was conducted in Washington, D.C. on 030515.  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.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as submitted

1.  I have enclosed a copy of LT, J_ A. D_, Appellate Defense Counsel, stating the Court-Martial lacked jurisdiction because Appellant's Military Judge was designated in VIOLATION of the appointments clause of the Constitution.

2.  (VFW Issue):  We concur with the Applicant's contention that his discharge be upgraded.  We refer this case to the Board for their careful and compassionate consideration and request the Applicant's discharge be reviewed for upgrading his discharge to General based on post service clemency.

Documentation

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

Copy of DD Form 214
Character Reference Letter dated September 19, 1996
Letter of Congratulation from Prince Georges County Government (Police Officer Written Examination)
Letter of Recommendation from S_ L. W_, dated March 20, 2002
Character Reference Letter from S_ M_, dated April 10, 2002

PART II - SUMMARY OF SERVICE

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

	Active:   USMC		840118 - 880129	HON
	Inactive: USMCR(J)		831216 - 840117	COG

Period of Service Under Review:

Date of Enlistment:  880130		Date of Discharge:  940915

Length of Service (years, months, days):

	Active:    06  07  16 (does not exclude lost time)
	Inactive:  None

Age at Entry:  18			Years Contracted:  4 

Education Level:  12			AFQT:  31

Highest Rank:  Cpl

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  4.5 (9)			Conduct:  4.2 (9)

Military Decorations:  None

Unit/Campaign/Service Awards:  MUC, SSDR (w1*), GCM (w1*), NDSM, Rifle Marksman Badge, NUC, Meritorious Mast (2), NAM 

Days of Unauthorized Absence:  15 

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:

880130:	Reenlisted at Marine Barracks, Washington, D.C. for 4 years.

880725:	NJP for violation of UCMJ, Article 86: Unauthorized absence from 0731, 880601 to 1443, 880616 (15 days/S).
Awarded forfeiture of $445.00 pay per month for 1 month (suspended for 3 months), restriction and for 60 days, reduction to E-3.  Not appealed.

910926:	Counseled for deficiencies in performance and conduct.  [Fraternization with a student which includes violation of School Order 5370.2B.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

920206:	Special Court-Martial.
	Charge I:  violation of the UCMJ, Article 123 (2 Specifications):
	Specification 1: On 910219, with intent to defraud, falsely make the signature of Col K. R. S_, USMC, upon SOI Special Order Number 1-91, which purported to authorize TAD orders, which said writing would, if genuine, apparently operate to the legal harm of the U.S. Government.
	Specification 2: On 910225, with intent to defraud, falsely make the signature of Col K. R. S_, USMC, as an endorsement to TAD orders, which said writing would, if genuine, apparently operate to the legal harm of the U.S. Government.
	Charge II:  violation of the UCMJ, Article 134: (2 Specifications):
	Specification 1: On 910228, wrongfully obtain from the TMO services of a value of about $344.00, to wit: airline tickets.  Specification 2: On 910809, wrongfully obtain from the TMO services of a value of about $370.00, to wit: airline tickets.  Additional Charges: violation of the UCMJ, Article 121: (2 Specifications): Specification 1: On 910228, steal one airline ticket, of a value of over $100.00, the property of the U.S. Government.  Specification 2: On 910809, steal one airline ticket, of a value of over $100.00, the property of the U.S. Government.
	Findings:  to Charge I and specification 1 and 2 thereunder, dismissed.  To Charge II and specification 1 and 2 thereunder, not guilty.  To Additional Charges and specification 1 and 2 thereunder, guilty.  
	Sentence:  Confinement for 2 months, forfeiture of $523.00 pay per month for 2 months, reduction to E-1, and a bad conduct discharge.
	CA 920827:  Sentence approved and ordered executed except for the BCD.
	
920206:	To confinement, Sentence of SPCM.

920326:	From confinement, to duty.

920426:	To appellate leave.

920819:	NC&PB denied clemency and restoration.

921221:	NMCCMR:  Affirmed findings and sentence.

930414:	COMA:  Petition for review denied.

940830:	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 940915 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 (D and E).

Issue 1.  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 issue was determined to be without merit in the appellate review process prior to his discharge.  Relief denied.

Issue 2.  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.  Normally, to permit relief, an error or inequity must have existed during the period of enlistment in question.  No such error or inequity 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, employment record, documentation of community service, certification of non-involvement with civil authorities and credible evidence of a substance free lifestyle, are examples of verifiable documentation that should have been provided to receive consideration for relief, based on post-service conduct.  The Applicant’s evidence of post-service conduct was found not to mitigate the offense for which he was discharged.  Relief not warranted.

The Applicant 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.  Representation at a personal appearance hearing is recommended but not required.

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 86, unauthorized absence; 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	
		Washington, D.C.  20374-5023