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Docket No. ND02-00818

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

 ex-AR, USN
Docket No. ND02-00818

Applicant’s Request

The application for discharge review, received 020517, requested that the characterization of service on the discharge be changed to entry level separation or uncharacterized.  The Applicant requested a documentary record discharge review.  The Applicant did not list any representative on the DD Form 293.  In the acknowledgement letter to the Applicant, he was informed that he was approaching the 15 year point for review by this Board and was encouraged to attend a personal appearance hearing in the Washington, D.C. area.  Applicant did not respond.

Decision

A documentary discharge review was conducted in Washington, D.C. on 030722.  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

1.  Ladies and gentlemen’s of the board...

First I would like to said my heart felt sorrow to the people who perished in the September 11 attacks and I support 100% the PRESIDENT OF THE UNITED STATES OF AMERICA, when I enlisted in the Navy on 25 June 1984 I sworn to Defend the Constitution of the United States Of America which I will Do for the rest of my life.  If their one thing I cherish is freedom and if I have to pay the price to guaranty freedom for our way of life then I shall pay.  The Country is at war and I would like to help and in the name of NACIONAL SECURITY to preserve Freedom.  I know that regulations require the assignment of an RE-4 reenlistment code when an individual receives a bad conduct discharge and I have no excuse for the way that I behaved those last two years of my enlistment.  I am willing to make up for it and I ask the Board to change my discharge to entry level separation.  In 1990 I served on a Grand Jury for the District of Puerto Rico this is where I learn the importance of the law in the civilian life and to prove that I am submitting a certificate of appreciation of the UNITED STATES OF AMERICA District Court of Puerto Rico and Negative Certification of no penal record in the Common Wealth Of Puerto Rico since I been out of the service. IT is said by those that have been to WAR "WAR IS NOT THE BEST PLACE TO BE AT BUT SOMEONE HAS TO GO AND DEFEND FREEDOM" I am willing to make that sacrifice in the name of NACIONAL SECURITY and to preserve Freedom for all.  GOD BLESS YOU AND MAY GOD BLESS THE UNITED STATES OF AMERICA.  Thank you for your time have a nice Day.

Sincerely,

Documentation

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

Applicant's DD Form 214
Certificate of Appreciation
Certifcado Negativo De Antecedentes Penales

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	831201 - 840624	COG
	Active:   None

Period of Service Under Review:

Date of Enlistment:  840625		Date of Discharge:  881212

Length of Service (years, months, days):

	Active:    04  05  18	Does not exclude lost time
	Inactive:  None

Age at Entry:  19			Years Contracted:  4

Education Level:  12			AFQT:  27/15

Highest Rate:  AA

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.15 (4)	Behavior:  2.50 (4)		OTA:  3.00

Military Decorations:  None

Unit/Campaign/Service Awards:  None

Days of Unauthorized Absence:  106

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:

860925:	NJP for violation of UCMJ, Article 86 (7 specs): (1) Unauthorized absence from 0700, 860713 to 0700, 860714 (1 day/surrendered), (2) Unauthorized absence from 0700, 860716 to 0730, 860722 (6 days/surrendered), (3) Unauthorized absence from 0700, 860816 to 0700, 860818 (2 days/surrendered), (4) Unauthorized absence from 0700, 860731 to 0800, 860804 (4 days/surrendered), (5) Unauthorized absence from 860807 to 860808 (1 day), (6) Unauthorized absence from 0700, 860905 to 0820, 860909 (4 days/surrendered), (7) Unauthorized absence from 0700, 860919 to 0700, 860922 (3 days/surrendered).
	Award:  Forfeiture of $319 per month for 2 months, restriction and extra duty for 45 days, reduction to AR.  Forfeiture for 1 month and restriction for 45 days suspended for 4 months.  No indication of appeal in the record.

860925:	Retention Warning: Advised of deficiency (Discreditable involvement with military authorities, e.g. unauthorized absence), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

870113:	Applicant to confinement.

870330:	Applicant from confinement.

870407:	Summary Court-Martial.
	Charge I: violation of the UCMJ, Article 86 (6 specs):
	Specification 1: Unauthorized absence from 0700, 861201 to 0830, 861208 (7 days/surrendered).
	Specification 2: Unauthorized absence from 0730, 861210 to 1200, 861211 (1 day/surrendered).
	Specification 3: Unauthorized absence from 0700, 861215 to 0826, 861216 (1 day/surrendered).
	Specification 4: Unauthorized absence from 0700, 861222 to 1655, 861224 (2 days/apprehended).
	Specification 5: Unauthorized absence from 861229 to 870105 (6 days).
	Specification 6: Unauthorized absence from 0700, 870106 to 1146, 870113 (7 days/surrendered).
	Charge II: violation of the UCMJ, Article 112a:
	Specification: Wrongfully use cocaine between 870108 and 870113.
	Finding: to Charge I and II the specifications thereunder, guilty.
	Sentence: Forfeiture of $405.00, confinement for 30 days.
	CA action 870423:  Sentence approved and ordered executed.

871211:	Special Court-Martial.
	Charge I: violation of the UCMJ, Article 86 (8 specs):
	Specification 1: Unauthorized absence from 0700, 870710 to 1700, 870721 (11 days/surrendered).
	Specification 2: Unauthorized absence from 0400, 870801 to 1800, 870803 (2 days/surrendered).
	Specification 3: Unauthorized absence from 0700, 870807 to 1200, 870811 (4 days/surrendered).
	Specification 4: Unauthorized absence from 0700, 870814 to 870820 (6 days/surrendered).
	Specification 5: Unauthorized absence from 0300, 870825 to 870915 (21 days/surrendered).
	Specification 6: Unauthorized absence from 0330, 870923 to 0900, 870925 (2 days/surrendered).
	Specification 7: Unauthorized absence from 0645, 870929 to 0645, 871001 (3 days/surrendered).
	Specification 8: Unauthorized absence from 0645, 871002 to 0925, 871014 (12 days/apprehended).
	Findings: to Charge I and specifications thereunder, guilty.
	Sentence:  Confinement for 75 days, forfeiture of $300 per month for 5 months, bad conduct discharge.
	CA 880222:  Sentence approved and ordered executed, except for bad conduct discharge.
	SA:  see SSPCMO.

871211:	Applicant to confinement.

871215:	Applicant from confinement.

880722:	NMCCMR:  The findings of guilty and sentence, as approved on review, are affirmed.

881117:	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 881212 with a bad conduct discharge which was the sentence adjudged by a properly constituted special court-martial that was determined to be legal and proper, affirmed by appellate review authority and executed (A and B).  The Board presumed regularity in the conduct of governmental affairs (C).  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 (D and E).

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 (C, 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 and documentation provided by the Applicant devoid of any mitigating or extenuating factors sufficient to offset the seriousness of the offenses for which the discharge was awarded.  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.  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 15560A), effective 15 Jun 87 until 13 Dec 89, Article 3640420, DISCHARGE OF ENLISTED PERSONNEL ADJUDGED BY SENTENCE OF COURT‑MARTIAL.

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 86- unauthorized absence.

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.  

D.  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.

E.  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.
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