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Docket No. ND00-00366

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

 ex-SR, USNR
Docket No. ND00-00366

Applicant’s Request

The application for discharge review, received 000201, requested that the characterization of service on the discharge be changed to honorable.  The applicant requested a documentary record discharge review.  The applicant listed AMERICAN LEGION as his representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 000824.  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.  (EQUITY ISSUE)  Pursuant to 10 USC 874 (b) (UCMJ article 74) and in accordance with SECNAVISNT 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 to 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:

Copy of DD Form 214 (2 copies)
Copies from service record (6pgs) (
Copies from medical record (2pgs)
Medical Reference Letter
Copies of medical information from Memphis Mental Health Institute (2pgs) (2 copies)
Copy of Notice of Hearing on Complaint for Judicial Hospitalization (5pgs) and (4pgs)
Copy of Letter from R____ H. C____ Attorney at Law (2 copies)
Copy of Letter from V___ K C___ M.D. Family Psychiatrist (2 copies)
Reference Letter from Pastor
Police Record Report
Reference Letter from applicant's mother
Reference Letter from applicant's sister
Copy of Credit Reference Statement 

PART II - SUMMARY OF SERVICE

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

	Active:   USN			None
	Inactive: USNR (DEP)	None

Period of Service Under Review:

Date of Enlistment:  811028		Date of Discharge:  870716

Length of Service (years, months, days):

	Active:    05  06  02
	Inactive:  00  03  20

Age at Entry:  19			Years Contracted:  6

Education Level:  12			AFQT:  28

Highest Rate:  SN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.60 (1)	Behavior:  3.60 (1)		OTA:  3.60

Military Decorations:  None

Unit/Campaign/Service Awards:  SSR 

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:

820217:	Ordered to active duty for 36 months under the Active Mariner program 

821210:	NJP for violation of UCMJ, Article 128: Assaulted a PO1 821127.
	Award:  Forfeiture of $286.00 per month for 2 months, restriction and extra duty for 45 days, reduction to E-1.  No indication of appeal in the record.

821213:	Retention Warning from [USS SACRAMENTO (AOE -1)]:  Advised of deficiency (Minor disciplinary infractions resulting in disciplinary action), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 

830427:	NJP for violation of UCMJ, Article 91: Disrespectful in language and deportment to a PO2 on 830426, violation of UCMJ Article 134: Wrongfully communicated a threat to injure by force a PO2 on 830426.
	Award:  Forfeiture of $286.00 per month for 2 months, restriction and extra duty for 45 days.  No indication of appeal in the record.

830516:	Retention Warning from [USS SACRAMENTO (AOE -1)]:  Advised of deficiency (Minor disciplinary infractions/pattern of misconduct resulting in disciplinary action), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 

840913:	Special Court Martial [trial date 840913]
	Charge I:  violation of the UCMJ, Article 134: Knowingly and wrongfully use marijuana, a schedule I controlled substance on or about 840417.
	Findings:  to Charge I and specification 1 thereunder, guilty.
	Sentence:  CHL for 4 months, forfeiture of $350.00 per month for 4 months, reduction to E-1.
	CA 841017:  Sentence approved and ordered executed.
	
841120:	Special Court Martial [trial dates 841120]
	Charge I:  violation of the UCMJ, Article 91: (2 Specs), Spec 1: Willfully disobeyed a lawful order to surrender his military identification card to BM1 R_____ D. J_____ a superior petty officer on or about 840909; Spec 2: Disrespectful in language to BM1 R_____ R. J______ a superior petty officer, by saying to him "You're a fucking honkey cracker mother-fucker, " and You're nothing but a stupid , white mother-fucker," or word to that effect. 
	Findings:  to Charge I and specification 1 thereunder, guilty. To Charge 1 and specification 2 thereunder, guilty, excepting the words "fucking honkey cracker," and excepting the words "and you're nothing but a stupid white mother fucker"; of the excepted words, not guilty; of all remaining words, guilty.
	Sentence:  Bad Conduct discharge.
	CA 850115:  Sentence approved.

841120:	Joined Navy Brig, NAVSTA TI, CA, for confinement.

841223:	Released from confinement and restored to full duty.

850322:	NMCCMR:  The findings of guilty and sentence, as approved on review, are affirmed.

870710:	SJA:	The findings of guilty and sentence is approved.

870710:	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 870716 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).

In the applicant’s issue 1, 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 applicant was discharged with a BAD CONDUCT discharge from a special court martial.  In addition to this court martial, he had a previous special court martial, in addition to 2 NJPs and 2 retention warnings.  The NDRB took into account the mitigating and extenuating factors of the applicant’s medical diagnosis, but it was not 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), effective 15 Jun 87 until 13 Dec 89, 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 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 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/A9105/A9221/A9223/