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

  ex-PVT, USMC
Docket No. MD03-01465

Applicant’s Request

The application for discharge review was received on 20030827.  The Applicant requests the characterization of service received at the time of discharge be changed to general/under honorable conditions.  The Applicant requests a documentary record review.  The Applicant did not list a representative on his DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20040610.  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:

“My discharge was improper because it was based on one incident in over 38 months of service with no other bad pro’s and con’s in my service record book.  I also feel that the brig time and reduction of pay grade and money taken away was hard on me.  I learned from my mistake and regret what happen.”

Documentation

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

Copy of DD Form 214 (Member -1 (x2) and State Director of Veterans Affairs – 6)

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: USMCR (J)		960112 - 960728	COG

Period of Service Under Review:

Date of Enlistment:  960729		Date of Discharge:  030219

Length of Service (years, months, days):

	Active:    06  02  19 (Takes into account lost time.)
	Inactive:  None

Age at Entry:  18			Years Contracted:  4

Education Level:  12			AFQT:  41

Highest Rank:  Cpl

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  4.5 (Taken from Record of Trial)	

Conduct:  4.4 (Taken from Record of Trial)

Military Decorations:  MM, MUC, and GCM

Unit/Campaign/Service Awards:  SSDR (w/1 star) 

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:

991214:	Counseled for being eligible but not recommended for promotion to Sgt due to pending court martial.

000516:	Special Court-Martial.
	Charge I:  violation of the UCMJ, Article 81:
	Specification:  Applicant conspired to commit larceny of U.S. currency, military property, of a value of about $2,564.00 by entering false information related to pay and entitlements into the unit diary system.
	Charge II:  violation of the UCMJ, Article 92:
	Specification:  Applicant, on more than one occasion between 990608 to 990719, was derelict in the performance of his duty while assigned to the Unit Diary section in that he willfully failed to properly execute his duties by personally entering false information related to pay and entitlement matters into the unit diary system and failed to ensure proper security over the electronic signature assigned to him.
	Charge III:  violation of the UCMJ, Article 107:
	Specification:  Applicant made false official statements concerning entries in the unit diary system, which resulted in a Marine receiving VHA and FSA to which he was not entitled.
	Charge IV:  violation of the UCMJ, Article 121:
Specification 1:  Applicant stole, on or about 990701, U.S. currency, military property, of a value of about $406.00.
Specification 2:  Applicant stole, on or about 990730, U.S. currency, military property, of a value of about $2,564.00.
	
Findings:  to Charge I and the specification there under, guilty.  To Charge II and specification there under, guilty.  To Charge III and the specification there under, guilty.  To Charge IV and specification 1 there under, guilty.  To specification 2 under Charge IV, guilty.  

	Sentence:  Reduction to E-1, to be confined 170 days, and to be discharged with a bad conduct discharge.
	CA 010520:  Sentence approved and ordered executed except for the BCD.
	
001023:	To appellate leave.

010608:	To appellate leave.

020329:	NMCCMR:  Affirmed findings and sentence.

030210:	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 20030219 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).  

In response to the Applicant's issue, relevant and material details 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 tried under the Uniform Code of Military Justice (UCMJ), the action of the NDRB is restricted to upgrades based upon clemency only (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 Applicant’s service records show no mitigating or extenuating factors sufficient to offset the seriousness of the offenses for which the discharge was awarded.  A very careful review of the Applicant’s record shows his service was marred with a trial by court-martial for violations of UCMJ Article 81:  Conspiracy; Article 92:  Failure to Obey Order or Regulation; Article 107:  False Statements or Article 121: Larceny and Wrongful Appropriation.  Relief, is therefore, denied.

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.  While he may feel that his discharge “was based on one incident in over 38 months of service with no other bad pro’s and con’s in (his) service record book” are considerable enough to warrant an upgrade, they do not mitigate the Applicant’s disobedience of the orders and directives that regulate good order and discipline in the naval service.  His disregard of those orders and directives demonstrated his unsuitability for further service.  It must be noted most Marines serve honorably and well, thereby, earning honorable discharges.  In fairness to those Marines, commanders and separation authorities are tasked to ensure the undeserving receive no higher characterization than is due.  An upgrade to general (under honorable conditions) would be inappropriate.  Relief denied. 

The Applicant stated under oath, he understood the elements of the offenses with which he was charged.  He freely admitted he was guilty of violating the Articles of the UCMJ under which he was charged. The Applicant’s misconduct is clearly documented in his service record warranting separation with a Bad Conduct Discharge as awarded by Special Court-Martial.  The Court-Martial convening authority accepted the Applicant’s guilty pleas and he was discharged accordingly.  The receipt of commendatory awards and favorable performance and conduct marks during the Applicant’s tour do not guarantee him an honorable discharge. When a Marine’s service has been honest and faithful, it is appropriate to characterize that service as honorable.  A less than honorable discharge is warranted when significant negative aspects of a member's conduct or performance of duty outweigh the positive aspects of the member's military record.  The Applicant’s service is so marred.  The Applicant’s conduct falls well short of that required for an honorable characterization of service.  Relief denied.

The NDRB recognizes that serving in the Marine Corps is very challenging.  
Our country is fortunate to have men and women willing to endure the hardships and sacrifices required in order to serve their country.  In fairness to those Marines who have served honorably and well, commanders and separation authorities are tasked to ensure that undeserving Marines receive no higher characterization than is due.  The NDRB respects the fact that the Applicant had favorable performance and conduct marks, but his service has been equitably characterized. Relief is not warranted.

The following is provided for the edification of the Applicant.  There is no law or regulation that provides for an unfavorable discharge to be upgraded based solely on the passage of time or good conduct in the civilian life subsequent to leaving the service.  However, the NDRB is authorized to consider post-service factors in the recharacteriza-tion of a discharge.  Outstanding post-service conduct, 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 may be considered.  Verifiable proof of 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 credible evidence of a substance-free lifestyle are examples of verifiable documents that may be provided to receive consideration for relief based on post-service conduct.  At this time, the Applicant has not provided sufficient verifiable documentation of good character and conduct to mitigate his misconduct while on active duty.
 
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 her 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 81:  Conspiracy; Article 92:  Failure to Obey Order or Regulation; Article 107:  False Statements or Article 121: Larceny and Wrongful Appropriation. 

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