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

FOR OFFICIAL USE ONLY

 ex-Pvt, USMC
Docket No. MD06-00950

Applicant’s Request

The application for discharge review was received on 20060705.  The Applicant requests the Discharge Characterization of Service received at the time of discharge be changed to general (under honorable conditions).  The Applicant requests a documentary record discharge review.  The Applicant did not designate a representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20070510.  After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, the Board determined that clemency was not warranted and that the characterization of discharge was appropriate.  The Board’s vote was unanimous that the character of the discharge shall not change.  The discharge shall remain as a bad conduct discharge by reason of court-marital.

PART I - ISSUES AND DOCUMENTATION

Decisional Issues

Equity – Characterization of service was too harsh

Documentation

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

Applicant’s DD Form 214 (Service 2)
Reference Letter from N_ H_, dtd June 2, 2006
Reference Letter from D_ W_

PART II - SUMMARY OF SERVICE

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

	Inactive:  USMCR (DEP)	20010501 - 20010923	COG
	Active:    None

Period of Service Under Review:

Date of Enlistment:  20010924		Date of Discharge:  20050826

Length of Service (years, months, days):

Active:    03  11  29  (Does not exclude lost time.)
	Inactive:  None

Time Lost During This Period (days):

	Unauthorized absence:  34 days
	Confinement:		  47 days

Age at Entry:  19

Years Contracted:  4 

Education Level:  12				AFQT:  41

Highest Rank:  PFC				MOS:  6046

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  NA*			Conduct:  NA*

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as stated on the DD Form 214):  Rifle Marksmanship Badge, National Defense Service Medal

*Not Available

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:

020625:	NJP for violation of UCMJ, Article 80: Attempted unauthorized absence, in that SNM did on or about 1615, 020421 attempt to absent himself w/o proper authority.
Award:  Not found in record.  Not appealed.

020724:	NJP for violation of UCMJ, Article 86: UA/AWOL, in that SNM did absent himself without proper authority on or about 1601, 020713 and surrendered himself on or about 2359, 020713
Violation of UCMJ, Article 86: UA/AWOL, in that SNM did absent himself without proper authority on or about 0200, 020718 and surrendered himself on or about 0400, 020718.
Violation of UCMJ, Article 86: UA/AWOL, in that SNM did absent himself without proper authority on or about 1200, 020713 and surrendered himself on or about 1107, 020714.
Violation of UCMJ, Article 86: UA/AWOL, in that SNM did absent himself without proper authority on or about 0700, 020718 and surrendered himself on or about 1400, 020718.
	Award:  Forfeiture of $257.00 pay per month for 1 month, restriction and extra duty for 14 days.  Not appealed.

021023:	NJP for violation of UCMJ, Article 90: Disobeying a lawful order by a superior commissioned officer.
Award:  Forfeiture of $522.00 pay per month for 2 months, restriction and extra duty for 45 days, reduction to E-1.  Not appealed.

040503:	Special Court Martial.
	Charge I:  violation of the UCMJ, Article 107.
	Specification: On or about 030924, with intent to deceive make an official statement, to wit: denying culpability for stealing Sergeant T_ S. H_’s,  U.S. Marine Corps, Military Star credit card, which statement was totally false.  Plea: Guilty.  Findings: Guilty.
	Charge II:  violation of the UMCJ, Article 121.
	Specification:  On or about or between 030809, steal a Military Star credit card, the property of Sergeant T_ S. H_,.  Plea: Guilty.  Findings: Guilty, except for the word “steal” and substituting therefore “wrongfully appropriate”.  To the excepted language NOT GUILTY, to the substituted language GUILTY, to the specification as excepted and substituted, GUILTY.
	Charge III:  violation of the UCMJ, Article 123 (2 specifications).
	Specification 1: On or about 030809, with intent to defraud, falsely make the signature of Sergeant T_ S. H_.  Plea: Guilty.  Findings: Guilty.
	Specification 2: On or about 030809, with intent to defraud, falsely make the signature of Sergeant T_ S. H_.  Plea: Guilty.  Findings: Guilty. 
	Charge IV:  violation of the UCMJ, Article 134 (4 specifications)
	Specification 1: On or about 030817, with intent to defraud, falsely pretend to Domino’s Pizza that the accused had legal authority to conduct telephonic charges to the Navy Federal Credit Union Sharecheck account of Sergeant T_ S. H_.  Plea: Guilty.  Findings: Guilty, except for the words “$28.10: and substituting therefore “$2.00”, except for the word “delivered” and substituting therefore: “delivery service”.  To the excepted language, NOT GUILTY, to the substituted language GUILTY, to the specification as excepted and substituted, GUILTY.
	Specification 2: On or about 030824, with intent to defraud, falsely pretend to Domino’s Pizza that the accused had legal authority to conduct telephonic charges to the Navy Federal Credit Union account of Sergeant T_ S. H_, did wrongfully obtain from Domino’s Pizza of Beaufort, South Carolina, services, of a value of about $26.01. Plea: Guilty.  Findings: Guilty, except for the words “$26.01: and substituting therefore “$2.00”, except for the word “delivered” and substituting therefore: “delivery service”.  To the excepted language, NOT GUILTY, to the substituted language GUILTY, to the specification as excepted and substituted, GUILTY.
	Specification 3: On or about 030830, with intent to defraud, falsely pretend to Domino’s Pizza that the accused had legal authority to conduct telephonic charges to the Navy Federal Credit Union account of Sergeant T_ S. H_, did wrongfully obtain from Domino’s Pizza of Beaufort, South Carolina, services, of a value of about $21.24. Plea: Guilty.  Findings: Guilty, except for the words “$21.24: and substituting therefore “$2.00”, except for the word “delivered” and substituting therefore: “delivery service”.  To the excepted language, NOT GUILTY, to the substituted language GUILTY, to the specification as excepted and substituted, GUILTY.
	Specification 4: On or about 030902, with intent to defraud, falsely pretend to Domino’s Pizza that the accused had legal authority to conduct telephonic charges to the Navy Federal Credit Union account of Sergeant T_ S. H_, did wrongfully obtain from Domino’s Pizza of Beaufort, South Carolina, services, of a value of about $20.17. Plea: Guilty.  Findings: Guilty, except for the words “$20.17: and substituting therefore “$2.00”, except for the word “delivered” and substituting therefore: “delivery service”.  To the excepted language, NOT GUILTY, to the substituted language GUILTY, to the specification as excepted and substituted, GUILTY.
	Sentence:  Confinement for 90 days, forfeiture of $795.00 pay per month for 3 months, reduction to E-1, Bad Conduct discharge.
	CA 040930:  The sentence is approved and except for the bad conduct discharge will be executed, however the execution of that part of the sentence adjudging confinement in excess of 60 days is suspended for a period of 6 months.
	
040504:	Joined NAVCONBRIG, CHASN, SC for confinement.

040621:	From confinement, restored to full duty. 

040813:	Applicant to appellate leave.

040930:	Applicant appellate leave status change to involuntary appellate leave.

050331:	NMCCCA:  Affirmed findings and sentence.

050606:	Appellate review complete.

050620:	SSPCMO:  Article 71c, UCMJ, having been complied with, Bad Conduct discharge ordered executed.

Service Record was missing elements of the Summary of Service.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20050826 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).  After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, the Board found that the Applicant’s issues were insufficient to merit clemency (C).  The Board presumed regularity in the conduct of governmental affairs (D).

Equity – Characterization of service was too harsh.  

In response to the Applicant’s issue, relevant and material facts 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, the action of the NDRB is restricted to upgrades based on clemency.  Clemency is an act of leniency that reduces the severity of the punishment imposed.  After a thorough review of the Applicant’s record, issues submitted, and post service accomplishments, the Board determined that clemency was not warranted and that the sentence awarded the Applicant at his court-martial was appropriate for the offenses he committed.  Relief denied.

Since the NDRB has no jurisdiction over reenlistment, reentry, or reinstatement into the Navy, Marine Corps, or any other of the Armed Forces, the NDRB is not authorized to change a reenlistment code.  Reenlistment policy of the  Marine Corps is promulgated by the Commandant, United States Marine Corps, Code MMEA, 3280 Russell Road, Quantico, VA 22134.  Neither a less than fully honorable discharge nor an unfavorable "RE" code is, in itself, a bar to reenlistment.  A request for a waiver is normally done only during the processing of a formal application for enlistment through a recruiter.

The Applicant remains eligible for a personal appearance hearing, provided an application is received, at the NDRB, within 15 years from the date of discharge.  The Applicant can provide documentation to support any claims of post-service accomplishments or any additional evidence related to this 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 P1900.16F), effective 01 September 2001 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, Articles 90 (willfully disobeying lawful order of superior commissioned officer), 107 (false official statements), 123 (forgery) and 134 ) false pretenses, obtaining services under).

C.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part II, Para 205(2), Jurisdictional Limitations Authority for Review of Discharges.

D.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part II, Para 211, Regularity of Government Affairs.  

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 Instruction 1332.28, you may submit a complaint in accordance with Enclosure (5) of that Instruction.  You should read Enclosure (5) of the Instruction 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 Instruction 1332.28 and other Decisional Documents by going online at “http://Boards.law.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:

		Secretary of the Navy 	Council of Review Boards
		Attn:  Naval Discharge Review Board
		720 Kennon Street SE Rm 309
		Washington Navy Yard DC  20374-5023