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

, ex-ABHAR, USN
Docket No. ND03-01040

Applicant’s Request

The application for discharge review was received on 20030528.  The Applicant requests the characterization of service received at the time of discharge be changed to general/under honorable conditions.  The Applicant requests a documentary record review.  The Applicant listed American Legion as the representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20040423.  After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, no impropriety or inequity in the characterization of the Applicant’s service was discovered by the NDRB.  The Board’s vote was unanimous that the character of the discharge shall not change.  The discharge shall remain: BAD CONDUCT/COURT MARTIAL CONVICTION, authority: NAVMILPERSMAN, Article 3640420.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

“1.  The case was not handled approp by the N.I.S, They lied about D.N.A. evidence, fingerprints, etc.  To cohersce a statement that should have been thrown out.

2.  After being charged, did not receive any help from my parent commands.

3.  I was told by my counsel that jurors would come from other commands than my own. 

4.  The second fire I was blamed for I did not discover, and the person who found the fire was not processed the way I was by the N.I.S. fingerprints, hair samples, etc.

5.  Lies that are admitted to in trial transcript by N.I.S. that were grounds to have the case thrown out.

6.  My awards, evals, etc.

7.  My work history in the navy.

8.  My professionalism, & dedication to duty while on active duty.

9.  This type of behavior by the N.I.S. happens all the, and should not be allowed to continue.

10.  I will not quit this fight of injustice that cost me naval career, I would be about 4 years from retirement right now, and rest assured I will persue all avenues until my story is heard and something is done about this matter.

11.  I am adding this after receiving copies from National Personnel Record Center I requested: If I was such a bad sailer and deserved to be kicked out of the Navy & Court Martialed explain why I was a final performance eval of 3.8, I do not understand this at all”.

Additional issues submitted by Applicant’s counsel/representative (AMERICAN LEGION):

“12.  (Equity Issue) Pursuant to 10 USC 874 (b) (UCMJ, Article 74) and in accordance with SECNAVINST 5420.174C, enclosure (1), paragraphs 2.24 and 9.3, this former member requests the Board’s clemency relief with up-grade of his characterization of service 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
Copy of Handwritten Letter from Applicant (2 pages)
Copies of Enlisted Performance Evaluation Reports (12 pages)
Copy of Letter of Achievement
Verification of Military Experience and Training Information (5 pages)
Letter to President C_ & First Lady H_ (2 pages)
Reference Letter from ABHC K_ J. P_ V-1 Division LCPO (2 pages) dated November 25, 1992
Reference Letter from Chief Petty Officer R_ W. R_ (2 pages)
Letter to Captain R_ from Applicant’s mother (4 pages) dated December 12, 1992
Letter from Captain R_ to Mrs. E_ K_ (Applicant’s mother)(2 pages) dated December 29, 1992r
Reference Letter from ABHC K_ J. P_ dated January 18, 1993
Statement from ABHC R_ W. R_
Letter to LT W_ M. S_ from Applicant’s mother (2 pages) dated May 5, 1993
Letter from Congressman H_ H. B_ dated November 9, 1992
Copy of Personal Award Recommendation (2 pages)
Copy of Navy Achievement Medal Citation 
Copy of Department of the Navy Certificate of Completion (Aviation Boatswain’s Mate (Handling) Course, Class C1
Copy of Sailor of the Month Letters (2)
Copy of Letter of Commendation Citation
Copy of Department of the Navy Certificate of Completion (Aviation Boatswain’s Mate (Handling Refresher)
Copy of Aviation Boatswain’s Mates Association Certificate
Copy of Certificate of Appointment to Aviation Boatswain’s Mate (Aircraft Handling) Third Class
Copy of Certificate of Frocking to Aviation Boatswain’s Mate (Aircraft Handling) Second Class
Copy of Certificate of Appointment to Aviation Boatswain’s Mate (Aircraft Handling) Second Class
Copy of Certificate of Completion (Navy Alcohol and Drug Safety Action Program)
Letter from Applicant’s mother to R_ (2 pages)
Letter from Applicant’s mother to Senator B_
Letter from Applicant’s mother to Attorney R_ dated May 1993 (2 pages)
Letter from National Personnel Records Center
Service Related Documents (26 pages) 

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	861112 - 870823	COG
	Active:   USN 			None

Period of Service Under Review:

Date of Enlistment:  870824		Date of Discharge:  941013

Length of Service (years, months, days):

	Active:    06  11  27
	Inactive:  None

Age at Entry:  18			Years Contracted:  4 (24 months extension)

Education Level:  12			AFQT:  40

Highest Rate:  ABH3

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.92 (5)	Behavior:  3.84 (5)		OTA:  3.92

Military Decorations:  None

Unit/Campaign/Service Awards:  BATTLE”E”, JMU, MUC, AFEM, NAM

Days of Unauthorized Absence:  None

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

BAD CONDUCT/COURT MARTIAL CONVICTION, authority: NAVMILPERSMAN, Article 3640420.

Chronological Listing of Significant Service Events:

900209:	Retention Warning:  Advised of deficiency (Failure to obey a lawful order 891214, violation of UCMJ Article 92.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 

900209:	NJP for violation of UCMJ, Article 92: Disobeying a lawful order 891214.
	Award:  Forfeiture of $100.00 pay per month for 1 month.  No indication of appeal in the record.

921202:	Special Court Martial [trial dates 921111, 921201-921202]
	Charge I:  violation of the UCMJ, Article 126, (2 Specifications),
	Specification 1:  Did on or about 920829 on board USS ENTERPRISE, willfully and maliciously set on fire, knowing that a human being was therein at the time, USS ENTERPRISE (Compartment 02-52-1) the property of the United States of a value of $100.00, Specification 2: Did on or about 920930 on board USS ENTERPRISE, willfully and maliciously set on fire, knowing that a human being was therein at the time, USS ENTERPRISE (Compartment 03-176-5-Q) the property of the United States of a value of $100.00.
	Findings:  To Charge 1 and specifications 1 and 2 thereunder, guilty.
	Sentence:  Confinement for 6 months, to pay a fine to the U.S. Government in the amount of $3000.00, reduction to E-1, Bad Conduct discharge.
	CA 930401:  Sentence is 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 adjudging confinement in excess of 65 days and any fine in excess of $1000.00 will be suspended for 12 months from the date of trial, at which time, unless sooner vacated, the suspended portion will be remitted without further action.
	
921202:	Joined the Navy Brig, Norfolk, Virginia, for confinement.

921229:	Applicant waived rights to clemency review.

930124:	From confinement to appellate leave.

940328:	NMCCMR:  The findings of guilty and sentence, as approved on review, are affirmed. 

940819:	COMA:  Request for appeal denied.

941013:	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 19941013 with a bad conduct discharge which was the sentence adjudged by a properly convened special court-martial.  That sentence was subsequently approved by both the convening and appellate review authorities (A and (B).  The Board presumed regularity in the conduct of governmental affairs (C).  

Issues 1-12:  In response to the Applicant’s issues, 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.  Clemency is an act of leniency that reduces the severity of the punishment imposed.  After a thorough review of the Applicant’s record, issues submitted, and post service accomplishments, the Board determined that clemency was not warranted.  

The Applicant remains eligible for a personal appearance hearing, provided an application is received, at the NDRB, within 15 years from the date of discharge.  The Applicant can provide documentation to support any claims of post-service accomplishments or any other evidence related to his discharge at that time.  Representation at a personal appearance hearing is recommended but not required.

Pertinent Regulation/Law (at time of discharge)

A.  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.  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 126.

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.  

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 Rm309
		Washington Navy Yard DC  20374-5023