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

 ex-Pvt, USMC
Docket No. MD04-00827

Applicant’s Request

The application for discharge review was received on 20040421.  The Applicant requests the characterization of service received at the time of discharge be changed to honorable.  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 20041022.  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/As a result of a courts-martial (SPCM) – Other, authority: MARCORSEPMAN Par. 1105.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

1.  “My discharge is improper because it was based on a isolated incident.  Spent 45 days in the brigg, lost medical discharge force to pay restition and given dishonorable discharge.  That was after I had served 21 months in service.  I was already on my way out of service.  I was an airborne supply rigger.  When I was hurt the unit took away my jump statis this took away money from my monthly check.  At that point I had just bought a truck brand new.  I had a large payment so when they took my jump pay it put me in what at hat the time I thought was financial jeopardy.  I was only 21 years old and the truck people kept calling for there payment.  So one day while working around the barracks I stole money from one of my fellow Marines.  I knew I was wrong so when the MP talked to me I admitted right away informed them that I had did the crime.  I never denied what I did was wrong but I have had to pay for my crime for the past 10- years.  Even tho I have yet to have broken any other laws.  While my torn muscle in my right knee increasingly gets worse.  I am an maintenance supervisor and have never had any incidents.  So I not say I was not wrong but I have paid for my crime please let me be able to get treatment my insure will not pay for it because it is a pre existing injury.  Thank you L_ F_ I had also lost all of my rank.”

Documentation

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

Copy of DD Form 214
8 pages for Applicant’s medical record

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: USMCR(J)		901215 - 910121	COG

Period of Service Under Review:

Date of Enlistment:  910122		Date of Discharge:  941014

Length of Service (years, months, days):

	Active:    03  07  14
	Inactive:  None

Age at Entry:  20			Years Contracted:  4 

Education Level:  12			AFQT:  45

Highest Rank:  LCpl			MOS:  0451

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  NMF*			Conduct:  NMF

*No marks found in service record

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM 

Days of Unauthorized Absence:  None 

Character, Narrative Reason, and Authority of Discharge (at time of issuance):

BAD CONDUCT DISCHARGE/As a result of a courts-martial (SPCM) - other, authority:  MARCORSEPMAN Par. 1105.

Chronological Listing of Significant Service Events:

921106:	Special Court-Martial.
	Charge I:  violation of the UCMJ, Article 121:
	Specification:  On 20 May 92, steal U.S. Currency of value of $340.00.
	Charge II:  violation of the UCMJ, Article 130:
	Specification:  On 20 May 92, unlawfully enter the bks rm of LCpl R_  H_ w/intent to commit a criminal offense.
	Findings:  to Charge I:  Guilty.  To Charge II: Guilty.  
	Sentence:  Fine of $450.00, confinement for three months, reduction to E-1, and a bad conduct discharge.
	CA 921106:  Sentence approved and ordered executed except for the BCD and except for the cnft in excess of 45 das which shall be susp for 12 mos.

920730:	Physical Evaluation Board reports Applicant should be separated with severance pay (10%) but without further disability benefits.

920806:	NC&PB denied clemency and restoration.

930426:	NMCCMR:  Affirmed findings and sentence.

941014:	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 19941014 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.  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.

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.  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 COURTS-MARTIAL, of the Marine Corps Separation and Retirement Manual, (MCO P1900.16D), effective 27 Jun 89 until 17 Aug 95.

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 121, larceny.

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	
		Washington, D.C.  20374-5023