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

 ex-PVT, USMC
Docket No. MD03-01356

Applicant’s Request

The application for discharge review was received on 20030806.  The Applicant requests the characterization of service received at the time of discharge be changed to honorable or general/under honorable conditions.  The Applicant requests 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 20040526.  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.  “Board members of the military, as a young marine in the early ninty’s I was young and not responsible to carry out my duty to the Marine Corps but it was not the corps fault for my behavior.  I lost my daughter my only child and for that I have never forgiven myself for.  I ask a change of discharge for education benefits and nothing else.  I was 20-21 when I was punished and I have grown by leaps and bounds, I ask for this as a man that is very sorry and honest, if you see it in your hearts to grant me a second chance and to further my education in Aviations I will be very greatful.”

Documentation

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

Copy of DD Form 214
Paraphrase Message from Red Cross dated September 20, 1995
Application for VA Education Benefits (4 pages) 

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: USMCR(J)		920722 - 930705	COG

Period of Service Under Review:

Date of Enlistment:  930706		Date of Discharge:  960925

Length of Service (years, months, days):

	Active:    03  02  20
	Inactive:  None

Age at Entry:  19			Years Contracted:  4 

Education Level:  12			AFQT:  51

Highest Rank:  LCpl

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  3.5 (4)			Conduct:  3.3 (4)

Military Decorations:  None

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

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:

940603:	Counseled for deficiencies in performance and conduct.  [UA from appointed place of duty on 3 occasions, 940314, 940507, and 940526.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

940720:	NJP for violation of UCMJ, Article 121: Did at AAFES on board Camp Foster, on or about 940703, steal two CD packs (each pack had 4 CD’s each) and a Super Nintendo cartridge, of a value of $140.85, the property of the Audio Store.
	Award:  Forfeiture of $226.00 per month for 1 month, restriction and extra duty for 14 days.  No indication of appeal in the record.

940812:	NJP for violation of UCMJ, Article 92: Did on or about 1445, 940805, disobeyed a lawful order by the Commanding Officer, HqBtry, 12thMarr, by breaking his restriction and shopping at the Base PX, violation of UCMJ, Article 92: Did on or about 1445, 940805, disobeyed a lawful order by the Commanding Officer, HqBtry, 12thMar, by breaking his restriction and being out of uniform at the Base PX.
	Award:  Forfeiture of $226.00 per month for 1 month, restriction and extra duty for 14 days.  No indication of appeal in the record.

940825:	Counseled for deficiencies in performance and conduct.  [Violation of Article 121 (larceny) on 940703.  Violation of Article 92, (2 Specifications) being out of uniform and shopping at the PX, breaking restriction on 940805.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

940826:	NJP for violation of UCMJ, Article 92: Did at 1600 on board Camp Foster, on or about 940821, violated a written order by the Commanding Officer, HqBtry, 12th Mar, to wit: Restriction Order 5800 ADMIN dated 940816, by leaving Camp Foster with PFC L. B. H_ and PFC K. H_ and proceeded to the Kadena Air Base Audio Store, violation of UCMJ, Article 86: Did on or about 940823, fail to report to the DNCO at 1700 for Restriction sign in.
	Award:  Forfeiture of $446.00 per month for 2 months, restriction and extra duty for 45 days, reduction to E-2.  No indication of appeal in the record.

950420:	Special Court-Martial.
	Charge I:  violation of the UCMJ, Article 134 (4 Specifications), Specification 1: Did at Okinawa, Japan, during October 1994, with intent to defraud, falsely pretend to American Telephone and Telegraph (AT&T) that he had authority to use the AT&T calling card account assigned to LCpl R_ J. H_, U.S. Marine Corps, then knowing that the pretenses were false, and by means thereof did wrongfully obtain from AT&T services of a value of about $2,861.29, to wit: telephone calls; Specification 2: Did at Okinawa, Japan, from October 1994 and November 1994, with intent to defraud, falsely pretend to MCI that he had authority to use the MCI calling card account assigned to LCpl L_ B. H_, U.S. Marine Corps, then knowing that the pretenses were false, and by means thereof did wrongfully obtain from MCI services, of a value of about $1,452.76, to wit: telephone calls; Specification 3: Did at Okinawa, Japan, from September 1994 and October 1994, with intent to defraud, falsely pretend to MCI that he had authority to use the MCI calling card account assigned to B_ F_ then knowing that the pretenses were false, and by means thereof did wrongfully obtain from MCI services, of a value of about $817.02, to wit: telephone calls, Specification 4: Unlawful entry.
	Findings:  to Charge I and specifications 1 thru 3 thereunder, guilty.  To specification 4 under Charge I, withdrawn.
	Sentence:  Confinement for 135 days, forfeiture of $450.00 pay per month for 4 months, reduction to Pvt, and a bad conduct discharge.
	CA 950804:  Sentence approved and ordered executed, confinement in excess of 120 days is suspended for a period of 12 months.
	
950420:	To confinement, Sentence of SPCM.

950812:	From confinement, to duty.

950918:	Counseled for deficiencies in performance and conduct.  [Being UA from field day formation at 1730, 950901.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

951026:	To appellate leave.

960626:	NMCCMR:  Affirmed findings and sentence.

960919:	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 19960925 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).  

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 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 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 134, false pretenses.

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