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Docket No. ND06-00841

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

FOR OFFICIAL USE ONLY

ex-HTFR, USN
Docket No. ND06-00841

Applicant’s Request

The application for discharge review was received on 20060607.  The Applicant requests the Discharge Characterization of Service received at the time of discharge be changed to general (under 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 20070315.  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 as a bad conduct discharge by reason of court-martial.

The NDRB did note administrative error(s) on the original DD Form 214.  Block 28, Narrative Reason for Separation, should read:  “COURT MARTIAL.”  The Commander, Navy Personnel Command, Millington, TN, will be notified, recommending the DD Form 214 be corrected or reissued, as appropriate.

PART I - ISSUES AND DOCUMENTATION

Applicant Issues,

The Applicant claims his current discharge, narrative reason for separation and reenlistment code are inequitable due to the fact that he served his post honorably during his prior two years of service.

The Applicant is claiming youth and immaturity as a contributing factor in his discharge.

Documentation

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

Applicant’s DD Form 214
Applicant’s statement, undated
Letter in support from H_ C_, U.S. Congressman, dated September 7, 2005
Letter from E_ K_, The State of Texas House of Representatives, dated September 1, 2005
Character Reference ltr from F_ M_, dated September 8, 2005
Character Reference ltr from A_ A. H_, dated October 13, 2005
Character Reference ltr from Mayor T_ H_, dated August 22, 2005
Character Reference ltr from City of Elmendorf, Councilman R. M. (A_) A_, dated August 22, 2005
Letter of Recommendation from M. R. S_, LCDR, CEC, USN, Commanding Officer, Underwater Construction Team ONE, dated August 24, 2005
Letter of Recommendation from BUC (SCW/DV) L_ W. S_, dated August 22, 2005
Character Reference ltr from J_ F. S_, Capt USN (retired), dated September 29, 2005
Character Reference ltr from J_ F_, President, Hallmark Institute, dated August 15, 2005
Character Reference ltr from S_ R_, Vice President, Marketing and Admissions, dated September 13, 2005
Character Reference ltr from Dr. D_ F. T_, Campus Director, dated August 15, 2004
Character Reference ltr from T_ U_, Controller, Hallmark Institute, dated September 7, 2005
Character Reference ltr from M_ H. L_, Campus Director, dated August 16, 2005
Character Reference ltr from W_ R. B_, Director, Purchasing, Hallmark Institute, undated
Character Reference ltr from J_ M. G_, Director of Career Planning and Industrial Relations, Hallmark Institute of Technology, dated September 12, 2005
Character Reference ltr from S_ H_, General Manager, dated August 18, 2005
Character Reference ltr from D_ B_, Owner, Alamo Prism Communication, undated
Character Reference ltr from E_ H_, VP - Legal, Southwest Federated, Inc, dated August 18, 2005
Letter of Recommendation from J_ S. F_, Assistant Chief, Harmony Volunteer Fire Department, dated August 21, 2005
Character Reference ltr from T_ W_, HR Recruiter, Humana Military Healthcare Services, dated August 19, 2005
Character Reference ltr from J_ K. M_, Catholic Deacon, St. Anthony’s Church, dated September 7, 2005
Character Reference ltr from A_ O_, Applicant’s wife, dated August 18, 2005
Character Reference ltr from K_ J. O_, Applicant’s brother, dated August 22, 2005
Character Reference ltr from V_ H_ K_, M.Ed., Hallmark Institute, General Education Department, dated September 12, 2005
Character Reference ltr from D_ M_, Sales Manager, Computer Express, dated September 14, 2005
Character Reference ltr from D_ H_, dated September 14, 2005
Character Reference ltr from R_ C_, Educational Programs Coordinator, dated September 15, 2005
Character Reference ltr from R_ O_, Applicant’s father, dated September 7, 2005
Character Reference ltr from J_ W. W_, dated September 16, 2005
Character Reference ltr from R_ R. H_, dated September 14, 2005
Character Reference ltr from A_ L. T_, Director of Education, Hallmark Institute of Technology, undated 
Character Reference ltr from G_ C_, undated
Character Reference ltr from K_ A. S_, dated September 21, 2005
Character Reference ltr from D. D_ I_, M.Ed, dated September 17, 2005
Applicant’s transcript of academic record
Certificate of Completion of Introduction to Quality Engineering given on February 14-18, 2000
Certificate of Completion for the correct handling, recovery, and recycling of refrigerants as a Type I and Type II Technician, dated April 20, 2001
Certificate of Completion of 17^th Annual Cuero Area Fire Control Conference, dated September 18, 1999
Certificate of Achievement for completion of Improvised Explosive Devices and Booby Trap Systems Awareness, dated May 12, 1997
Certificate of Achievement for completion of Ground Cover, dated August 25, 1999
Certificate of Achievement for completion of Inspection Practices, dated January 25, 1999
Certificate of Merit from Padgett Thompson, dated March 6, 1998
Certificate of Completion of Pole Climbing and Ladder Use Safety Training, dated March 8, 1996
Certificate of Completion of Installer Qualification Training, dated April 4, 1996
Certificate of Completion for certified cable system installer, dated April 4, 1996
Certificate of Completion of Educational Requirements in Basic Group, dated March 31, 2006
Certificate of Completion of Educational Requirements in Electrical 1, dated April 7, 2006
Certificate of Completion of Educational Requirements in Electrical 2, dated April 14, 2006
Letter of Appreciation, dated July 21, 1992
Enlisted Performance Evaluation Report for February 1, 1991 to January 31, 1992 (2 pages)
Enlisted Performance Evaluation Report for February 1, 1992 to July 15, 1992 (2 pages)
Letter of Appreciation, dated August 5, 1991
Letter of Appreciation, dated February 20, 1992
Certificate of Baptism, dated March 26, 2000
Certificate of Membership, dated August 1995
Photography of a trophy
Pat on the Back/thank you notes (4)
Applicant’s passport
Police record check, dated August 18, 2005
Police record check, dated August 15, 2005
CAT - ASVAB test score report
DD Form 295 (page 4 of 4)
Applicant’s divorce decree, dated February 20, 1992 (12 pages)
Letter from Applicant’s ex-wife, dated September 14, 2005
Letter from Applicant’s mother, dated December 30, 1992
Letter from Applicant’s great-aunt, dated December 20, 1992
Two photographs

PART II - SUMMARY OF SERVICE

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

	Inactive:  USNR (DEP)	19900127 – 19900430	COG
	Active:    None

Period of Service Under Review:

Date of Enlistment:  19900501		Date of Discharge:  19941004

Length of Service (years, months, days):

	Active:    04  05  04  (Does not exclude lost time.)
	Inactive:  None

Time Lost During This Period (days):

	Unauthorized absence:  102 days
	Confinement:		    37 days

Age at Entry:  18

Years Contracted:  4

Education Level:  10 GED			AFQT:  50

Highest Rate:  HT3

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.8 (2)			Behavior:  3.7 (2)		OTA:  3.80

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

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

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

Chronological Listing of Significant Service Events: 

900920:	NJP for violation of UCMJ, Article 92: Failure to obey a direct order, to wit: drinking underage.
Violation of UCMJ, Article 111: Driving while impaired (under the influence of alcohol.)
	Award:  Forfeiture of ½ pay for 2 months, restriction and extra duty for 45 days.  Forfeiture, restriction and extra duty suspended for 6 months.  No indication of appeal in the record.

921006:	Report of Declaration of Deserter (DD Form 553).  Applicant declared a deserter having been an unauthorized absentee since 0630, 920904 from USS SHENANDOAH (AD 44).

921019:	Applicant missed ship’s movement.

921028:	Applicant missed ship’s movement.

921113:	Applicant missed ship’s movement.

921216:	Report of Return of Deserter.  Applicant surrendered to military authorities on 921216 (0045) on board USS SHENANDOAH (AD 44).

921216:	Applicant to pretrial restriction.

921218:	Charges preferred for violation of the Uniform Code of Military Justice (UCMJ) Article 86:  Did, on or about 920904, without authority, absent himself from his unit and did remain so absent until on or about 921216.

921218:	Applicant informed of charges.

921218:	Charges referred to special court-martial. 

930107:	CO’s NJP held 930107.  No further information found in service record.  [Extracted from Enlisted Performance Record.]

930119:	Applicant from pretrial restriction.

930119:	Applicant signed appellate rights statement.

930119:	Special Court Martial
	Charge I:  violation of the UCMJ, Article 86:
	Specification:  Unauthorized absence from 920904 to 921216.  Plea: Guilty.  Findings:  Guilty.
	Sentence:  Confinement for 45 days, reduction to E-1, Bad Conduct discharge.
	CA 930607:  The sentence approved and ordered executed, except for bad conduct discharge.
	SA:  see SSPCMO.

930119:	Applicant to confinement at Naval Station Brig.

930225:	Applicant from confinement.

930225:	Applicant to appellate leave.

930729:	NC&PB clemency not granted; restoration denied.

931022:	NMCCMR:  The findings of guilty and sentence, as approved on review, are affirmed.

940926:	Appellate review complete.

941004:	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 19941004 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 claims his current discharge, narrative reason for Separation and reenlistment code are inequitable due to the fact that he served his post honorably during his prior two years of service.  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.  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.

The Applicant is claiming youth and immaturity as a contributing factor in his discharge.  The statement contained in the application that the Applicant’s admission was due to his youth and immaturity was found to be insufficient justification to warrant a change in the reason for discharge.  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.  The Applicant can provide documentation to support any claims of post-service accomplishments or any additional evidence related to this 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, Articles 86 (unauthorized absence for more than 30 days) and 87 (Missing movement).

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 Instruction 1332.28, you may submit a complaint in accordance with Enclosure (5) of that Instruction.  You should read Enclosure (5) of the Instruction 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 Instruction 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