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Docket No. ND06-00073

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

FOR OFFICIAL USE ONLY

 ex-CTRSR, USN
Docket No. ND06-00073

Applicant’s Request

The application for discharge review was received on 20051020.  On the Applicant’s DD 293, the Applicant requests the Discharge Characterization of Service received at the time of discharge be changed to general (under honorable conditions).  In the Applicant’s issue, the Applicant requests his Discharge Characterization of Service received at the time of Discharge be changed to Under Other Than Honorable Conditions.  The Applicant requests a documentary record discharge review.  The Applicant did not designate a representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20060721.  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 as a bad conduct discharge by reason of court-martial conviction.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application and/or attached document/letter: 

“Sir or Madam, I would like to request an upgrade in my discharge status from a bad conduct (BCD) to an other than honorable discharge if possible (OTH).  Thirteen years have passed since the incident which led to my discharge, and in that time I have had a chance to mature and reflect upon the stupidity and selfishness of the actions which lead to my discharge.  I deeply regret the immaturity I showed at the time, and hold no ill will towards the Navy, as I realize that the entire situation was my own fault.  I humbly apologize and therefore ask that you would take into consideration the fact that I was a young, foolish kid at the time, and would gladly go back and set things right if I could.
Since leaving the Navy, I feel I have grown and matured. I now hold a stable job and have a family.  I look back on my time in the Navy with a mixture of pride and regret. Please consider upgrading the status of my discharge.

Sincerely,
S_ A. B_(Applicant)”

Documentation

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

Applicant’s DD Form 214
Leave and earning statement from S_ T_ for period ending October 8, 2005

PART II - SUMMARY OF SERVICE

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

	Inactive:  USNR (DEP)	19900103 - 19900117	COG
	Active:    None

Period of Service Under Review:

Date of Enlistment:  19900118		Date of Discharge:  19940405

Length of Service (years, months, days):

	Active:    04  00  05  (excludes lost time)
	Inactive:  None

Time Lost During This Period:

	Unauthorized absence:  None
	Confinement:		  73 days

Age at Entry:  19

Years Contracted:  4

Education Level:  12				AFQT:  84

Highest Rate:  CTRSN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.6 (1)			Behavior:  3.6 (1)		OTA:  3.60

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214):  National Defense Service Medal

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: 

900823:	Applicant referred to Level III treatment after self referral to CAAC.

901009:	Applicant discharged to duty.  Discharge diagnosis:  1. Alcohol dependence treated.  2. Psoriasis.  3. Tinea cruris, treated.
	Applicant assigned to Aftercare Plan.

920709:	Psychiatric admission:  Assessment: AXIS I: Alcohol dependence, active.  Adjustment disorder with mixed disturbance of emotions and conduct.  AXIS II: Deferred (significant narcissistic traits).  AXIS III: Overweight.

920723:	US Naval Hospital Okinawa Report of Alcohol Related Incident.  Applicant’s BAC over .20 percent.

920724:	Applicant to pretrial confinement. 

920902:	Special Court Martial.
	CHARGE I.:  ARTICLE 91:
SPECIFICATION 1:  Disobeyed lawful order of superior petty officer to report for duty before 0800, an order which it was his duty to obey.  Plea:  Not Guilty.  Finding:  Not Guilty.
SPECIFICATION 2:  Disobeyed lawful order of superior chief petty officer to put his uniform on and go to work, an order which it was his duty to obey.  Plea:  Guilty.  Finding:  Guilty.
SPECIFICATION 3:  Disobeyed lawful order of superior chief petty officer to shut his mouth, an order which it was his duty to obey.  Plea:  Guilty.  Finding:  Guilty.
SPECIFICATION 4:  Disrespectful in language toward superior petty officer who was in the execution of his office by telling him “F--- that, I’m not going to work today,” or words to that effect.  Plea:  Guilty.  Finding:  Guilty.
CHARGE II:  ARTICLE 92:
SPECIFICATION: Failed to obey BUPERS WASHINGTON DC 090026Z DEC 91 by traveling to the Republic of the Philippines without an area clearance between 16 February 1992 and about 5 March 1992.  Plea:  Guilty.  Finding:  Guilty.
CHARGE III. ARTICLE 107:
SPECIFICATION: With intent to deceive, signed official statement, a leave request, indicating that he was going on leave to Wyoming, which record was totally false in that CTRSN B_(Applicant) had no intentions of going to Wyoming but instead was planning on going on leave to the Republic of the Philippines.  Plea:  Guilty.  Finding:  Guilty.
CHARGE IV:  ARTICLE 134:
SPECIFICATION: As a result of wrongful previous overindulgence in intoxicating liquor, CTRSN B_(Applicant) was incapacitated for the proper performance of his duties. Plea:  Guilty.  Finding:  Guilty.
Sentence:  Forfeiture of $500 per month for 3 months, confinement for 90 days, reduction to E-1; and Bad Conduct discharge.
	CA 921106:  The sentence approved and ordered executed, except for bad conduct discharge.
	
920920:	Applicant found qualified for separation.

921005:	Applicant from confinement.  [Date extracted from DD Form 214, Block 29.]

921006:	Applicant signed appellate review statement.

931227:	NMCCMR:  The findings of guilty and sentence, as approved on review, 
	are affirmed.

940325:	Appellate review complete.

940405:	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 19940405 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).  After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, the Board found that the Applicant’s issues were insufficient to merit clemency (C).  

The Applicant’s case was considered under the pertinent standards of equity to determine if any factors in this particular case merited clemency.  Clemency is an act of leniency that reduces the severity of the punishment imposed.  The NDRB found the evidence of record, to include the Applicant’s post-service employment, did not contain sufficient mitigating or extenuating factors to offset the seriousness of the offenses for which the discharge was awarded.  In addition, the reason for discharge, convicted by special court-martial, is most appropriate.  Relief denied.

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.  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 91, insubordinate conduct (willfully disobeying a noncommissioned or petty officer) or UCMJ, Article 92, failure to obey and order/regulation.
 
C.   Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part II, Para 205(2), Jurisdictional Limitations Authority for Review of Discharges.

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