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

 ex-PVT, USMC
Docket No. MD02-00270

Applicant’s Request

The application for discharge review, received 020114, requested that the characterization of service on the discharge be changed to entry level separation or uncharacterized.  The applicant requested a personal appearance hearing discharge review before the Board in the Washington National Capital Region.  The applicant listed American Legion 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 021008.  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/COURT-MARTIAL, authority: MARCORSEPMAN Par. 1105.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as submitted

1  (Equity Issue) Pursuant to 10 USC 874 (b) (UCMJ, Article 74) and in accordance with SECNAVINST 5420.174C, enclosure (1), paragraph 2.24 and 9.3, this former member requests the Board's clemency relief with up-grade of his characterization of service under honorable conditions 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:

Copies of DD Form 214 (2)
Letter from LCpl M_

PART II - SUMMARY OF SERVICE

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

	Active:   USMC		None
	Inactive: USMCR(J)		931122 - 931129	COG

Period of Service Under Review:

Date of Enlistment:  931130		Date of Discharge:  961024

Length of Service (years, months, days):

	Active:    02  10  25
	Inactive:  None

Age at Entry:  22			Years Contracted:  4 

Education Level:  12			AFQT:  50

Highest Rank:  PFC

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  4.3 (7)			Conduct:  3.5 (7)

Military Decorations:  None

Unit/Campaign/Service Awards:  Rifle Sharpshooter 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:

940707:	Counseled for deficiencies in performance and conduct.  [Specifically,  misconduct, using provoking speech and gestures, communicating a threat and assault towards Non-Commissioned Officers in the execution of their duties.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

950417:	Special Court-Martial.
	Charge I:  violation of the UCMJ, Article 117: Did at Camp Foster, Okinawa, Japan, on or about 941107, wrongfully use provoking works, to wit: "If I get busted for this I'm going to hurt you so bad they're going to have to put me in the brig" or words to that effect towards LCpl J_ E. M_, U.S. Marine Corps.  Charge II:  violation of the UCMJ, Article 134: (3 Specifications), Spec 1: Did at Camp Foster, Okinawa, Japan, on or about 9406 to 9410, with intent to defraud, falsely pretend to MCI that he had the authority to use the MCI account assigned to LCpl J_ E. M_, 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 $11,488.52, to wit: telephone calls; Spec 2: Did at Camp Foster, Okinawa, Japan, on or about 941107, wrongfully communicate to LCpl J_ E. M_, U.S. Marine Corps, a threat to injure LCpl M_, to wit: "If I get busted for this I'm going to hurt you so bad they're going to have to put me in the brig" or words to that effect; Spec 3: Did at Camp Foster, Okinawa, Japan, on or about 941107, wrongfully endeavor to influence the testimony of LCpl J_ E. M_, U.S. Marine Corps, as a witness in the investigation in the case of United States v. PFC C_, by communicating to LCpl M_ a threat to injure LCpl M_ if PFC C_ received disciplinary action or was "busted" as a result of LCpl M_ reporting the unauthorized use of a MCI calling card by PFC C_ and LCpl M_’s cooperation in the investigation of the unauthorized use of the MCI calling card.
	Findings:  to Charge I and specification 1 thereunder, guilty.  To Charge II and specification 1 thereunder, guilty.  Specifications 2 and 3 under charge II, withdrawn.  
	Sentence:  Confinement for 120 days, forfeiture of $350.00 pay per month for 6 months, reduction to E-1, and a Bad Conduct discharge.
	CA 950714:  Sentence approved and ordered executed.
	
950417:	To confinement, Sentence of SPCM.

950717:	From confinement, to duty.

950724:	Applicant's waiver for clemency review.

951023:	To appellate leave.

960805:	NMCCMR:  Affirmed findings and sentence.

961024:	SSPCMO:  Article 71c, UCMJ, having been complied with, Bad Conduct discharge ordered executed.

970404:	COMA:  Petition for review denied.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 961024 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 in the legal chain of review 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.  By regulation, members discharged within the first 180 days of enlistment are given characterization of service as “uncharacterized” unless there were unusual circumstances regarding performance or conduct which would merit an “honorable” characterization.   Because of the applicant’s length of service, he is not eligible for consideration of an entry level (“uncharacterized”) separation.  Relief denied.

The applicant’s discharge characterization accurately reflects his service to his country.  Despite the fact that the victim only desired the monetary debt to be repaid, the applicant’s actions warrant a bad conduct discharge.  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.  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 that the applicant is drug free, are examples of verifiable documentation that should have been provided to receive consideration for relief, based on post-service conduct.  The applicant did not provide sufficient documentation to warrant an upgrade to his discharge.  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 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 117, provoking speech, and 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.  

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