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Docket No. ND04-00624

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

ex-OSSR, USN
Docket No. ND04-00624

Applicant’s Request

The application for discharge review was received on 20040303.  The Applicant requests the characterization of service received at the time of discharge be changed to general/under honorable conditions.  The Applicant requests a personal appearance hearing discharge review before the Board in the Washington, D.C. Metropolitan Area.  The Applicant listed American Legion as the representative on the DD Form 293.

Decision

A personal appearance discharge review was conducted in Washington, D.C. on 20050315.  After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, the Board determined that clemency was not warranted and that the characterization of discharge was appropriate.  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 stated

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

1.  “(Equity Issue) Pursuant to Title10, USC, Section 874 (b), (UCMJ, Article 74) and in accordance with SECNAVINST 5420.174D, Part IV, Paragraph 403 m (7), 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. 

In accordance with Title 32, CFR, Section 724.116 and SECNAVINST 5420.174D, Part I, Paragraph 1.20, The American Legion submits to the Naval Discharge Review Board (NDRB or Board) the above issue in supplement to the Applicant’s petition.

The American Legion’s express purpose in providing this statement, and any other submittals or evidence filed, is to assist this Applicant in the clarification and resolution of the impropriety or inequity raised.  To that end, we rest assured that the NDRB’s final decision will reflect sound equitable principles consistent in law, regulation, policy and discretion as promulgated by Title 10, USC, Section 1553 and set forth in Title 32, CFR, Part 724 and SECNAVINST 5420.174D.

This case is now respectfully submitted for deliberation and disposition.”

Issue submitted by Applicant’s counsel supersedes DD Form filed 20040212.

Documentation

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

Arizona State Banking Department Mortgage Broker License, dated February 2, 2005
Federal Bureau of Investigation Records Check, dated January 31, 2005
Copy of Resume (2 pages)
Copy of Transcript, from the University of Southern California (2 pages)
Copy of Transcript, from the University of Phoenix (2 pages)
Copy of Bachelor of Science Degree, University of Southern California 
Copy of Master of Business Administration Degree, University of Phoenix
Copy of Dean’s Honor List Certificate, Los Angeles Trade-Technical College
Copy of Dean’s Honor Roll Congratulations Letter, Los Angeles Trade-Technical College
Copy of Dean’s Scholarship Congratulations Letter, Los Angeles Trade-Technical College
Copy of Letter of Recommendation from D_ M. V_, Professor of English, Los Angeles Trade-Technical College
Letter of Recommendation for Admittance into the University of Southern California from W_ G. T_, EdD, Professor of English, Los Angeles Trade-Technical College
Character/Employment Reference Letter from C_ M_, Warner Bros Studio Facilities Business Planning Department
Letter of Recommendation from J_ M_, Scout Mortgage, dated January 12, 2004
Letter of Recommendation from T_ D. S_, dated January 5, 2004
Applicant’s DD Form 214
Letter of Recommendation from R_ R_, dated October 18, 2003
Copy of Superior Academic Achievement Certificate, dated May 26, 1994
Copy of Certificate of Appreciation for Outstanding Community Service and Academic Achievement, dated April 8, 1995
Copy of Certificate of Appreciation for Volunteer Service, dated May 23, 2001
Copy of Certificate of Completion (26 mile, 385 yard marathon), dated March 14, 1999
Copy of Marriage Certificate
Copy of Daughter’s Birth Certificate 
Copy of Son’s Birth Certificate
Copy of W-2 Tax Statement
Credit Report (4 pages) 

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	860929 - 870719	COG
	Active:   USN			None

Period of Service Under Review:

Date of Enlistment:  870720		Date of Discharge:  900731

Length of Service (years, months, days):

	Active:    03  00  11 (Does not exclude lost time)
	Inactive:  None

Age at Entry:  17 (Parental Consent)	Years Contracted:  4

Education Level:  12			AFQT:  53

Highest Rate:  OSSA

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  NMF*			Behavior:  NMF		OTA:  NMF

Military Decorations:  None

Unit/Campaign/Service Awards:  None

Days of Unauthorized Absence:  72

* Not marks found in service record

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:

880722:	NJP for violation of UCMJ, Article 86: UA.
	Award:  Forfeiture of $150.00 pay per month for 1 month, restriction and extra duty for 15 days.  No indication of appeal in the record.

890811:	Report of Declaration of Deserter (NAVPERS 1600-3).  Applicant declared a deserter on 890811 having been an unauthorized absentee since 0715, 890712 from USS CAYUGA (LST 1186).

891108:	Special Court Martial
	Charge I:  violation of the UCMJ, Article 87, (2 Specifications).
	Specification 1: Missed ship’s movement through design on or about 0800, 890613.
Specification 2: Missed ship’s movement through design on or about 0800, 890807.  
Charge II:  violation of the UCMJ, Article 112a, (2 Specifications). Specification 1: Wrongfully used cocaine at or near Long Beach, California, on or about 890711.
Specification 2: Wrongfully used marijuana at or near Long Beach, California, on or about 890711.  
Charge III:  violation of the UCMJ, Article 86 (2 Specifications). Specification 1: Unauthorized absence from on or about 890613 until on or about 890711. 
Specification 2: Unauthorized absence from on or about 890712 until on or about 890820.  
Additional Charge: violation of the UCMJ, Article 86: (3 Specifications), Specification 1: Unauthorized absence from on or about 891023 until on or about 891025.
Specification 2: Unauthorized absence from on or about 891028 until on or about 891030. 
Specification 3: Unauthorized absence from on or about 0715, 891101 until on or about 0700, 891102. 
	Findings:  To Charge I and specifications 1 thereunder, guilty, specification 2 thereunder, not guilty.  To Charge II and specification 1 thereunder, not guilty, to specification 2 thereunder, guilty except for the words and figure “Long Beach” and “11”, substituting therefore the words and figure “Los Angeles” and “9”.  To Charge III and specification 1 and 2 thereunder, guilty.  To Additional Charges and specification 1 and 2 thereunder, guilty, to specification 3 thereunder, guilty, except the figures “0715” and “0700”.
	Sentence:  Confinement for 2 months, forfeiture of $466.00 pay per month for 2 months, reduction to E-1, Bad Conduct discharge.
	CA 891229:  Sentence approved and ordered executed, except for bad conduct discharge.
	
891108:	Joined Navy Brig Naval Station, Long Beach, California, for confinement.

891108:	Waiver of Clemency.

891220:	Applicant to Appellate Leave.

900228:	NMCCMR:  The findings of guilty and sentence, as approved on review, are affirmed.

900731:	SSPCMO:  Article 71c, UCMJ, having been complied with, Bad Conduct discharge ordered executed.

021008:	NDRB documentary record review Docket Number ND02-00328 conducted.  Determination:  discharge proper and equitable; relief not warranted.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19900731 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).  

Issue 1:  In response to the Applicant’s issue, 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.  The Applicant’s service was marred by award of nonjudicial punishment (NJP) for violation of UCMJ, Article 86 (Unauthorized absence), and a special court-martial for violations of Articles 86 (Unauthorized absence), Article 87 (Missing ships movement), Article 112a (Wrongful use of a controlled substance – 2 Specifications), and an additional violation of Article 86 (Unauthorized absence – 3 Specifications). After a thorough review of the Applicant’s record, issues submitted, and post service accomplishments, the Board determined that clemency was not warranted and that the sentence awarded the Applicant at his court-martial was appropriate for the offenses he committed.  Relief denied

Outstanding post-service conduct, to the extent that such matters provide a basis for a more thorough understanding of the Applicant’s performance and conduct during the period of service under review, can be considered for a change in the discharge characterization.  In determining whether a case merits a change based on post-service conduct, the NDRB considers the length of time since discharge, the Applicant's record of community service, employment, conduct, educational achievements, and family relationships.  In reviewing the Applicant’s post service, the Board was impressed with the Applicant’s educational and career progression, which demonstrated that he possessed character and drive that was not evident during his tour of active duty.  However, the Applicant’s evidence of post-service conduct was found not to mitigate his misconduct sufficient to warrant an upgrade to his discharge.   Relief denied.  

The following if provided for the edification of the Applicant.  The NDRB has no authority to provided additional review of this case since Applicant’s discharge occurred more than 15 years ago.  The Applicant may, however, petition the Board for Correction of Naval Records (BCNR), 2 Navy Annex, Washington, DC 20370-5100, concerning a change in the characterization of naval service, if he desires further review of his case.

Pertinent Regulation/Law (at time of discharge)

A.  The Naval Military Personnel Manual, (NAVPERS 15560A), Change 9, effective 14 Dec 89 until 14 Aug 91, 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 for more than 30 days).

C.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part II, 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 “http://Boards.law.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:

		Secretary of the Navy Council of Review 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.