Author: CAP
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Docket No. ND02-00484

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

 ex-AR, USN
Docket No. ND02-00484

Applicant’s Request

The application for discharge review, received 020311, requested that the characterization of service on the discharge be changed to general/under honorable conditions.  The Applicant requested a personal appearance hearing discharge review before a traveling panel.  The applicant did not list any representative on the DD Form 293.  In the acknowledgement letter to the Applicant, he was informed that the Naval Discharge Review Board (NDRB) does not travel, all hearing are held in the Washington, DC Area.  The Naval Discharge Review Board (NDRB) also advised that the board first conducts a documentary review prior to any personal appearance hearing.

Decision

A documentary discharge review was conducted in Washington, D.C. on 021115.  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, as submitted

Prior to the documentary discharge review, the applicant introduced no issues as block 8 on the DD Form 293 is blank. 

Documentation

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

Copy of Certified Navy-Marine Corps of Military Review (3pgs)
Copy of Special Court-Martial Order (3pgs)
Copy of Appellate Review Petition (2pgs)
Letter from Applicant
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)	900525 - 900729	COG

Period of Service Under Review:

Date of Enlistment:  900730		Date of Discharge:  930513

Length of Service (years, months, days):

	Active:    02  00  28
	Inactive:  None

Age at Entry:  18			Years Contracted:  4 

Education Level:  11			AFQT:  35

Highest Rate:  AR

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  NMF		Behavior:  NMF		OTA:  NMF

Military Decorations:  None

Unit/Campaign/Service Awards:  SASMwb*, NDSM 

Days of Unauthorized Absence:  223 

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:

910419:	NJP for violation of UCMJ, Article 91: (2 Specifications), Spec 1: Insubordinate conduct toward a Petty Officer on 910406; Spec 2: Insubordinate conduct toward a Chief Petty Officer on 910406.
	Award:  Forfeiture of $100.00 pay per month for 2 months, restriction and extra duty for 20 days.  No indication of appeal in the record.

910419:	Retention Warning:  Advised of deficiency (Minor misconduct due to disrespect to a Petty Officer and Chief Petty Officer and failure to obey a lawful order), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 

911023:	Summary Court-Martial.
	Violation of the UCMJ, Article 86: UA from unit on or about 910717 to 910922 (67days/S), violation of UCMJ, Article 87: Miss movement of USS THEODORE ROOSEVELT (CVN-71) on or about 910820.
	Sentence:  Confinement for 30 days, forfeiture of $500.00 pay per month for 1 month, reduced to E-1.
	CA action 911030:  Sentence approved and ordered executed.

911116:	Released from confinement and returned to full duty.

920318:	Report of Declaration of Deserter (NAVPERS 1600-3).  Applicant declared a deserter on 920207 having been an unauthorized absentee since 0545, 920107 from USS THEODORE ROOSEVELT (CVN-71).

920424:	Report of Return of Deserter.  Applicant apprehended by civil authorities on 920423 (0730) at Omaha, NE.  Returned to military control 920423 (0905).  Orig retained custody pending transfer to USS THEODORE ROOSEVELT (CVN-71).

920507:	Report of Return of Deserter.  Applicant apprehended by civil authorities on 920423 (0730) at Omaha, NE.  Returned to military control 920423 (0905).  Orig retained custody pending transfer to USS THEODORE ROOSEVELT (CVN-71).

920601:	Special Court Martial
	Charge I:  violation of the UCMJ, Article 86, (3) Specifications;
	Specification 1:  Unauthorized absence from unit from 911122 to 911224 [42 days/S.]
	Specification 2: Unauthorized absence from unit from 911226 to 920102, [7days/S]; Specification 3: Unauthorized absence from unit from 920107 to 920420 [107days/S]. 
	Findings:  to Charge I and specifications 1, 2 and 3 thereunder, guilty.
	Sentence:  CHL for 90 days, forfeiture of $300.00 pay per month for 3 months, and to be discharged with a Bad Conduct discharge.
	CA 920930:  Sentence approved and, except for the part of the sentence extending to a bad conduct discharge, will be executed.  The execution of that portion of the sentence adjudging confinement in excess of 45 days is hereby suspended for a period of 12 months from the date of trial, at which time, unless the suspension is sooner vacated, the suspended portion of the sentence will be remitted without further action. 

920601:	Joined the Naval Brig, Naval Station Norfolk, VA, for confinement.

920707:	Released from confinement and placed in appellate leave.

920708:	Applicant waived clemency review. [Extracted from NC&PB computer system].

930129:	NMCCMR:  The findings of guilty and sentence, as approved on review, are affirmed.

930513:	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 930513 with a bad conduct discharge due to conviction 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).

The Applicant introduced no decisional issues for consideration by the Board.  Relief denied.

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.  The Applicant can provide additional documentation to support any claims of post-service accomplishments at that time.  Representation at a personal appearance hearing is recommended but not required.

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 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 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/A0100/A9500/A9217/A9221