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Docket No. ND99-00886

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

 ex-SR, USN
Docket No. ND99-00886

Applicant’s Request

The application for discharge review, received 990616, requested that the characterization of service on the discharge be changed to honorable.  The applicant requested 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 000417.  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/Convicted by special court martial, authority:  NAVMILPERSMAN, Article 3640420.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues (verbatim)

1.  I feel the characterization of discharge should be upgraded due to psychiatric problems & alcohol abuse.

Documentation

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

Copy of DD Form 214

PART II - SUMMARY OF SERVICE

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

	Active:   USN			None
	Inactive: USNR (DEP)	880513 - 880704	COG

Period of Service Under Review:

Date of Enlistment:  880705		Date of Discharge:  900417

Length of Service (years, months, days):

	Active:    01  06  29
	Inactive:  None

Age at Entry:  29			Years Contracted:  4 

Education Level:  12			AFQT:  50

Highest Rate:  SA

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  2.00 (2)	Behavior:  1.90 (2)		OTA:  2.80

Military Decorations:  None

Unit/Campaign/Service Awards:  None 

Days of Unauthorized Absence:  None 

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

BAD CONDUCT/Convicted by special court  martial, authority: NAVMILPERSMAN, Article 3640420.

Chronological Listing of Significant Service Events:

890510:	NJP for violation of UCMJ, Article 91: (3 Specs), Disrespectful in language and deportment to a Chief Petty Officer and a First Class Petty Officer and failing to accompany his LPO to a counseling session with his LCPO as he was ordered to do, violation of UCMJ Article 92: Derelict in the performance of duties that he willfully failed to clean the serving line and watch the trash during breakfast.
	Award:  Forfeiture of $349.00 pay per month for 2 months ($349.00 pay per month for 1 month suspended for 6 months), restriction and extra duty for 30 days, reduction to E-1.  No indication of appeal in the record.

890515:	Retention Warning:  Advised of deficiency (Misconduct as evidenced by CO's NJP for violation of Articles 91 and 92), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 

890618:	NJP for violation of UCMJ, Article 91: (6 Specs), Willfully disobey an order given to him by a petty officer.
	Award:  Forfeiture of $349.00 per month for 1 month, restriction and extra duty for 45 days.  No indication of appeal in the record.

890625:	Pretrial Restraint 890625-890809 (46days).

890810:	Special Court Martial [trial date 890810]
	Charge I:  violation of the UCMJ, Article 112a: Wrongful use of marijuana.  Charge II: violation of the UCMJ, Article 90: Disobeying a lawful order from a superior commissioned officer.  Charge III: violation of the UCMJ, Article 89: Disrespect toward a superior commissioned officer.  Charge IV: violation of the UCMJ, Article 91: Disobeying a lawful order from MA1 C______.
	Findings:  to Charge I II III, and IV and specifications thereunder, guilty.
	Sentence:  CHL for 3 months, forfeiture of $400 per month for 3 months, Bad Conduct discharge.
	CA 890929:  Sentence approved and, except for that part of the sentence extending to a bad conduct discharge, will be executed, but the execution of that part of the sentence extending to confinement in excess of seventy-five (75) days is suspended for twelve (12) months from the date of trial, at which time, unless the suspension is sooner vacated, the suspended part of the sentence will be remitted without further action.

890810:	Joined Naval Brig, Pearl Harbor, Hawaii, for confinement.

890908:	From confinement; to appellate leave.

890914:	NJP for violation of UCMJ, Article 92: Failure to obey a written regulation, violation of UCMJ Article 89: Disrespect toward a commissioned officer.
	Award:  Restriction and extra duty for 7 days.  No indication of appeal in the record.

891221:	NMCCMR:  The findings of guilty and sentence, as approved on review, are affirmed.

900227:	NC&PB clemency not granted; restoration denied.

900327:	COMA:  No petition received.

900416:	SJA:  Findings and sentence are finally approved.  Recommended that the discharge be executed

900417:	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 900417 with bad conduct due to convicted by special court martial (A).  The Board presumed regularity in the conduct of governmental affairs (B).  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 (C and D).

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. (B, 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 devoid of any mitigating or extenuating factors sufficient to offset the seriousness of the offenses for which the discharge was awarded.  The applicant is reminded that he remains eligible for a personal appearance hearing provided that an application is received within 15 years from the date of discharge.

Pertinent Regulation/Law (at time of discharge)

A.  The Naval Military Personnel Manual, (NAVPERS 15560A), Change 9, effective 14 Dec 89 until 14 Aug 91, Article 3640420, DISCHARGE OF ENLISTED PERSONNEL ADJUDGED BY SENTENCE OF COURT‑MARTIAL

B.  Secretary of the Navy Instruction 5420.174C of 22 August 19984 (Manual for Discharge Review, 1984) enclosure (1), Chapter 2, paragraph 2.24, COURT-MARTIAL SPECIFICATION, PRESUMPTION CONCERNING.

C.  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.

D.  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 obtain a copy of DoD Directive 1332.28 by writing to:

		DA Military Review Boards Agency
		Management Information and Support Directorate
		Armed Forces Reading Room
		Washington, D.C.  20310-1809

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
		Washington Navy Yard
		720 Kennon Street SE Rm 309
		Washington, D.C.  20374-5023

The remaining portion of this document is divided into 4 Parts: Part I - Applicant’s Issues and Documentation, Part II - Summary of Service, Part III – Rationale for Decision and Pertinent Regulation/Law, Part IV - Information for the Applicant.
INDEX:  A6800/A9323/A9319/A9217/A9105