Author: CAP
Last saved by: Department of the Navy
Company: NCPB

Docket No. ND01-00434

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

ex-SR, USN
Docket No. ND01-00434

Applicant’s Request

The application for discharge review, received 010222, 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 010629.  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

1.  Please, I have made lots of mistakes in my past and I'm trying to make amends with every one.  I have now chance to get a good job and a career that my help me and my wife and two kids.  So all I ask it to see if you can help just by doing this one thing for me so I can offer them something in the near future.

Documentation

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

Letter from applicant

PART II - SUMMARY OF SERVICE

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

	Active:   USN 		None
	Inactive: USNR (DEP)	870306 - 870322	COG

Period of Service Under Review:

Date of Enlistment:  870323		Date of Discharge:  930521

Length of Service (years, months, days):

	Active:    05  08  16
	Inactive:  None

Age at Entry:  24			Years Contracted:  4 

Education Level:  12			AFQT:  25

Highest Rate:  SN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.40 (4)	Behavior:  3.45 (4)		OTA:  3.65

Military Decorations:  None

Unit/Campaign/Service Awards:  None 

Days of Unauthorized Absence:  118 

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:

890323:	NJP for violation of UCMJ, Article 86: Unauthorized absence (3 Specifications) 890131, 890216, and 890318.
	Award:  Restriction and extra duty for 30 days.  No indication of appeal in the record.

890417:	Retention Warning:  Advised of deficiency (Disciplinary infractions which resulted in punishment under the UCMJ, and numerous unauthorized absences), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

891016:	Retention Warning:  Advised of deficiency (Letter of Indebtedness), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

900111:	Retention Warning:  Advised of deficiency (Letter of Indebtedness), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 

900226:	Report of Declaration of Deserter (NAVPERS 1600-3).  Applicant declared a deserter on 900226 having been an unauthorized absentee since 0730, 900127 from USS DE WERT (FFG-45).

900228:	Report of Return of Deserter.  Applicant surrendered to military authorities on 900226 (1905) at Naval Station New York. Returned to military control 900226 (1905).  Retained onboard for disciplinary action.

900307:	NJP for violation of UCMJ, Article 86: Unauthorized absence from 900127-900226 [30days/S], violation of UCMJ Article 87: Missed movement on 900131.
	Award:  Forfeiture of $444.00 per month for 2 months, restriction and extra duty for 40 days, reduction to E-2 (suspended for 6 months).  No indication of appeal in the record.

900525:	Report of Declaration of Deserter (NAVPERS 1600-3).  Applicant declared a deserter on 900524 having been an unauthorized absentee since 0700, 900424 from USS DE WERT (FFG-45).

900723:	Report of Return of Deserter.  Applicant apprehended by civil authorities on 900718 (1655) at Corby North Hamptonshire, UK.  Returned to military control 900719 (01000).  Orig retains custody pending transfer to USS DE WERT (FFG-45).

900731:	Pretrial Restraint 900731-900817.
 
900817:	Special Court Martial
	Charge I:  violation of the UCMJ, Article 86: Unauthorized absence 900422 – 900718, [87 days/A.]
	Findings:  to Charge I and specifications 1 thereunder, guilty.
	Sentence:  Confinement for 2 months, forfeiture of $400.00 per month for 2 months, reduction to E-1, Bad Conduct discharge.
	CA 901229:  Sentence approved and ordered executed, except for bad conduct discharge.
	
900817:	Joined Naval Consolidated Brig, Naval Weapons Station, Charleston, South Carolina, for confinement.

900905:	Applicant waived clemency review.

900906:	Released from confinement.

910731:	NMCCMR:  The findings of guilty and sentence, as approved on review, are affirmed.

930521:	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 930521 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.  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 failed to provide documentary evidence to demonstrate his sobriety, positive community service, employment history, and clean police record since discharge.  Relief based on clemency is not warranted.

The applicant is eligible for a personal appearance hearing provided the application is received within 15 years from the date of discharge.  Representation at personal appearance hearing is recommended

Pertinent Regulation/Law (at time of discharge)

A.  The Naval Military Personnel Manual, (NAVPERS 15560C), Change 5, effective 05 Mar 93 until 02 Oct 96, Article 3640420, DISCHARGE OF ENLISTED PERSONNEL ADJUDGED BY SENTENCE OF COURT‑MARTIAL

B.  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.  

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 "afls10.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

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/A0145