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

  ex-PVT, USMC
Docket No. MD03-00808

Applicant’s Request

The application for discharge review was received on 20030403.  The Applicant requests the characterization of service received at the time of discharge be changed to entry level separation or uncharacterized.  The Applicant requests a documentary record discharge review.  The Applicant listed American Legion as his representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20040312.  After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, no impropriety or inequity in the characterization of the Applicant’s service was discovered by the NDRB.  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, as stated

Applicant’s issues, as stated on the application:

1.  “I am currently in the process of obtaining character references that will be sent at a later date.
I have attached Documents that show my character 10/27/03”

Additional issues submitted by Applicant’s counsel/representative (AMERICAN LEGION):

2.  “(Equity Issue) Pursuant to 10 USC 874 (b) (UCMJ, Article 74) and in accordance with SECNAVINST 5420.174C, enclosure (1), paragraphs 2.24 and 9.3, this former member requests the Board’s clemency relief with up-grade of his characterization of service on the basis of his post-service conduct.”

Documentation

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

Letter from Applicant (2 pages)
Reference Letter dated March 5, 2003
Copy of DD Form 214
Copy of Bachelor of Arts Degree from Southern Illinois University
Résumé 

PART II - SUMMARY OF SERVICE

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

	Active:   USMC		None
	Inactive: USMCR(J)		940111 - 940829	COG

Period of Service Under Review:

Date of Enlistment:  940830		Date of Discharge:  961219

Length of Service (years, months, days):

	Active:    02  03  20
	Inactive:  None

Age at Entry:  18			Years Contracted:  4 

Education Level:  12			AFQT:  35

Highest Rank:  LCpl

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  4.3 (3)			Conduct:  4.3 (3)

Military Decorations:  None

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

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:

950911:	Special Court-Martial.
	Charge I:  violation of the UCMJ, Article 80 (2 Specifications):
	Specification 1: On Okinawa, Japan on or about 950813, attempt to steal by means of force and violence U.S. currency of some value the property of Airman D_, Specification 2: In Okinawa, Japan on or about 950813, attempt to steal by means of force and violence U.S. currency of some value the property of Airman D_.
	Charge II:  violation of the UCMJ, Article 81: On Okinawa, Japan  on or about 950813, conspire with PFC M_, PFC M_ G_, LCpl B_, and LCpl A_, robbery and assault, and in order to effect the object of the conspiracy, SNM’s did go to an area near “whisper alley”, surround LCpl P_, then hit and kick LCpl P_ with their hands and feet, and then take from LCpl P_ U.S. currency and then later surround Airman First Class M_ USAF, Airman D_ USAF and Airman D_ USAF then hit and kick subject named Air Force personnel with their hands and feet, and search through their pockets for U.S. currency of some value.  
Charge III: violation of the UCMJ, Article 122 (2 Specifications): Specification 1: On Okinawa, Japan on or about 950813 by means of force and violence and putting him in fear, steal from LCpl P_, against his will, U.S currency of some value, the property of LCpl P_, Specifications 2: On Okinawa, Japan on or about 950813 by means of force and violence and putting him in fear, steal from Airman First Class M_, USAF, against his will, U.S currency of some value, the property of Airman First Class M_.  
Charge IV: violation of UCMJ, Article 128 (4 Specifications): Specification 1: On Okinawa, Japan on or about 950813, unlawfully strike LCpl P_ repeatedly on the head and upper body with his fists and feet, Specification 2: On Okinawa, Japan on or about 950813, unlawfully strike Airman First Class M_ USAF, repeatedly on the head and upper body with his fists and feet, Specification 3: On Okinawa, Japan on or about 950813, unlawfully strike Airman D_ USAF, repeatedly on the head and upper body with his fists and feet, Specification 4: On Okinawa, Japan on or about 950813, unlawfully strike Airman D_ USAF, repeatedly on the head and upper body with his fists and feet.
	Charge V: violation of UCMJ, Article 134 (2 Specifications): Specification 1: On Okinawa, Japan, on or about 950813, with intent to commit robbery, commit an assault upon Airman D_, USAF, by repeatedly hitting and kicking him on the head and upper body using his hands and feet, Specification 2: On Okinawa, Japan, on or about 950813, with intent to commit robbery, commit an assault upon Airman D_, USAF, by repeatedly hitting and kicking him on the head and upper body using his hands and feet.  Additional Charge I: violation of UCMJ, Article 81: On Okinawa, Japan, on or about 950812, conspire with LCpl B_, LCpl S_ and PFC B_, robbery and assault, and in order to effect the object of the conspiracy, LCpl F_, LCpl B_, LCpl S_, and PFC B_, did go to an area near “whisper alley” surround LCpl G_ then hit and kick LCpl G_ and LCpl F_ on the head and upper body with their hands and feet, and take from LCpl G_, U.S. currency of some value, and then take from LCpl F_ a pack of Marlboro cigarettes of some value.  Additional Charge II: violation of UCMJ, Article 122 (2 Specifications): Specification 1: On Okinawa, Japan on or about 950812, by means of force and violence and putting him in fear, steal from LCpl G_, against his will, U.S. currency of some value, Specification 2: On Okinawa, Japan on or about 950812, by means of force and violence and putting him in fear, steal from LCpl F_, against his will, a pack of Marlboro cigarettes of some value the property of LCpl F_.  Additional Charge III: violation of UCMJ, Article 128 (2 Specifications): Specification 1: On Okinawa, Japan on or about 950812, unlawfully strike LCpl G_ repeatedly on the head and upper body with his fists and feet, Specification 2: On Okinawa, Japan on or about 950812, unlawfully strike LCpl F_ repeatedly on the head and upper body with his fists and feet.
	Findings:  to Charge I and specifications 1 and 2  thereunder, guilty.  To Charge II and specification thereunder, guilty.  To Charge III and specifications 1 and 2 thereunder, guilty.  To Charge IV and specification 1, 2, 3 and 4 thereunder, withdrawn.  To Charge V and specifications 1 and 2 thereunder, withdrawn.  To Additional Charge I and specification thereunder, guilty, except for the words “and assault.”  To Additional Charge II and specifications 1 and 2 thereunder, guilty.  To Additional Charge III and specifications 1 and 2 thereunder, withdrawn.
	Sentence:  Confinement for 6 months, forfeiture of $225.00 pay per month for 6 months, reduction to E-1, and a bad conduct discharge.
	CA 960111:  Sentence approved and ordered executed except for the BCD.  The accused is credited with having served 29 days pretrial confinement from 14Aug95-11Sep95.
	
950912:	To confinement, sentence of SPCM.

951101:	From confinement, to duty.

960402:	To appellate leave.

961004:	NMCCMR:  Affirmed findings and sentence.

961219:	SSPCMO:  Article 71c, UCMJ, having been complied with, bad conduct discharge ordered executed.

970306:	COMA:  Petition for review denied.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19961219 with a bad conduct discharge which was the sentence adjudged by a properly convened special court-martial.  That sentence was subsequently approved by both the convening and appellate review authorities (A and B).  The Board presumed regularity in the conduct of governmental affairs (C).  

Issues 1 and 2.  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 and documentation provided by the Applicant absent of any mitigating or extenuating factors sufficient to offset the seriousness of the offenses for which the discharge was awarded.   Relief denied.

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 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 80, attempts; Article 81, conspiracy; and Article 122, robbery.

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.  

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