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NAVY | DRB | 1997_Navy | ND97-01343
Original file (ND97-01343.rtf) Auto-classification: Denied


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



, ex MSSR, USN
Docket No. ND97-01343


 Applicant’s Request
The application for discharge review, received 970909, requested that the characterization of service on the discharge be changed to general. The applicant requested a documentary discharge review, he did not list a representative on the DD-293.


Summary of Review

A documentary discharge review was conducted in Washington, D.C. on 980921. The NDRB determined that the discharge equitably reflects the quality of service rendered. The discharge shall remain: BAD CONDUCT/Convicted by special court martial; authority: NAVMILPERSMAN, Article 3640420.

PART I - APPLICANT’S ISSUES (verbatim)



 1. On July 30, 1987 it was my birthday. I had the weekend off at shortstay, Moncks Corner S.C. Naval station Charleston S.C. Just before midnight 3 or 4 teen kids put a practical joke on me I did not know. The senior enlist parents - snowballed the joke/that night I was in the brig for unknown reason; I did not see a charge until 3 months later. (Oct 1987). I was put in my own custody trust until my own + last court hearing Dec. 9, 1987 I had 4 court hearings due to some kids civilians could not get their story accurate: no-one got hurt but ME.

2. It has been 10 years, 10 years to say I do not have a mark on my SSN (myself) and respectfully will do all my best to be faithful, honest.

3. Enclosed document(s) statements that I seek federal employment based on my sea + job training and school education. I respectfully need a higher RE: Code (also a chance to possibly serve in the national guard.)


PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active:  USN                        770126-801112    HON
                           USN                        801113-841023    HON     
         Inactive:        USNR (DEP)                770113-770125    COG

 Period of Service Under Review :
Date of Enlistment: 841024                        Date of Discharge: 891017

 Length of Service (years, months, days):

          Active:          04 11 23
          Inactive:        None

 Age at Entry: 26                                   Years Contracted: 4

 Education Level: 12                                 AFQT: 35

 NEC: MS 0000                              Highest Rate: MS2

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.68 (5)    Behavior: 3.68 (5)                OTA: 3.64

 Military Decorations: None
Unit/Campaign/Service Awards: SSDR, B“E”R (3), GCM
Nonjudicial Punishment(s): None           Court(s)-Martial: (1) SPCM

Days of Unauthorized Absence: None
Character, Narrative Reason, and Authority of Discharge:
BAD CONDUCT/Convicted by special court martial; authority: NAVMILPERSMAN, Article 3640420.

PART III - CHRONOLOGICAL LISTING OF SIGNIFICANT SERVICE EVENTS1


841024:  Reenlisted onboard USS SIERRA (AD-18) Charleston, S.C. for 6 yrs.

870206:  Joined NAVSTA, Charleston, SC.

871209:  To confinement, NAVSTA, Charleston, SC.

880219:  From confinement.

 880523:  Special Court Martial [trial dates 871109, 871110, 871202, 871208, 871209].
         Charge I: violation of the UCMJ, Article 134, (4) Specifications.
         Specification 1: Commit an indecent act upon a female under 16 years of age, to wit: by fondling her left breast, rubbing his hand over her back, and pulling the back of her brassiere and letting it snap against her back with intent to gratify his sexual desires,
 Specification 2: Commit an indecent act upon a female under 16 years of age, to wit: by squeezing her buttocks with his hand with intent to gratify his sexual desires,
Specification 3: Communicate indecent language to a child under 16 years of age, to wit: by saying “I may not look like the type that would go off and rip all of your clothes off, but it does cross my mind because you are very attractive”,
Specification 4: Take indecent liberties with a female under 16 years of age, to wit: by saying to her “I may not look like the type that would go off and rip all your clothes off, but it does cross my mind because you are very attractive”, with intent to arouse his sexual desires.
          Findings: to Charge I and specifications 1 and 2 thereunder, guilty. Charge I and specification 3 thereunder, Dismissed as a lesser included offense of specification 4. Charge I and specification 4 thereunder, guilty.
         Sentence: CHL for 3 months, forfeiture of $400 per month for 3 month(s), reduction to E-1, Bad Conduct Discharge.
         CA 880523: Sentence approved and except for that part of the sentence extending to a Bad Conduct Discharge, will be executed.
         SA: see SSPCMO.

880922:  NC&PB clemency not granted; restoration denied.
890131:  NMCCMR: The findings of guilty and sentence, as approved on review, are affirmed.
890310:  Petitioned the court for review of conviction.

 890522:  COMA: Request for appeal denied.

891006:  SSPCMO: Article 71c, UCMJ, having been complied with, Bad Conduct discharge ordered executed.

891017:          Discharged BAD CONDUCT/Convicted by special court martial, authority: NAVMILPERSMAN, Article 3640420.

RECORDER’S NOTES:

 1 The source for all entries is the service record (includes medical/dental record) unless otherwise noted.

PART IV - EXTRACT OF PERTINENT REGULATION/LAW


 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 COURTMARTIAL , states:

1. The words "discharge" and "discharges" hereinafter used in this article refer to dishonorable discharges and bad conduct discharges adjudged by sentence of courtmartial.

2. Aside from the responsibilities placed upon reviewing authorities as to the legality and uniformity of sentences, reviewing authorities are vested with the authority to exercise clemency. In order that all reviewing authorities may be able to assess fully the propriety of a sentence and the potential of an accused for future service, when a punitive discharge has been adjudged, it is mandatory that a synopsis of the conduct record of the accused be available. The convening authority, in those cases where the sentence adjudged extends to a punitive discharge, shall include in his or her initial action a brief synopsis of the accused’s conduct record during the current enlistment including any extensions. The synopsis shall be included in the court-martial order. This synopsis should contain, in chronological order: dates, nature of offenses committed, sentences adjudged and approved, and nonjudicial punishment imposed. The synopsis should also include medals, awards, commendations, and any other information of a commendable nature. Although not required, similar action may, if circumstances are deemed appropriate, be taken in other cases.

3. In any action taken on the record to suspend a courtmartial sentence or any part thereof, which includes a punitive discharge, the convening or supervisory authority should be guided by paragraph 88e, Manual for CourtsMartial, 1969 (Rev.), and section 0123, Manual of the Judge Advocate General. The Naval Clemency and Parole Board reviews cases in which an unsuspended punitive discharge is included in the sentence, as provided by SECNAVINST 5815.3, and makes appropriate recommendations to the Secretary of the Navy for restoration to duty on a probationary period in deserving cases. The Board bases such recommendations on the background of the member concerned, his or her civilian and military history, adjustment in confinement, motivation for future service, and the nature and circumstances of his or her offenses together with the recommendations of the commanding officer of the confining activity and the Commander, Naval Military Personnel Command, in each case. Nothing stated herein should be construed as limiting the authority of convening and supervisory authorities to suspend the execution of a sentence or any part thereof in worthy cases when such action is deemed appropriate.

4. Discharges as a result of a courtmartial shall be effected only upon orders from appropriate authority after appellate review of the sentence has been completed and, where applicable, after compliance with SECNAVINST 5815.3. In those cases where confinement is adjudged in addition to a discharge, the discharge certificate will, where appropriate, be retained in the prisoner's personnel file at the brig, and given to the servicemember upon completion of confinement, or upon transfer to a Federal penal institution, or when the member is to be paroled directly from a military confinement facility. Even though the discharge has been effected, because the member is serving a sentence imposed by courtmartial, the member remains subject to the Uniform Code of Military Justice.

5. When an enlisted member who has been sentenced to an unsuspended punitive discharge is serving on board ship or outside the 48 contiguous United States or the District of Columbia, transfer shall be made in accordance with provisions in this Manual to a separation activity. Transfer in cases of this nature shall not be effected until review has been completed by the officer exercising general court-martial jurisdiction, and appropriate entries have been made in the service record to show the action taken by the officer exercising general court-martial jurisdiction. Upon the member’s arrival at the separation activity, the commanding officer of that activity shall immediately advise the Judge Advocate General and the Commander, Naval Military Personnel Command.

6. Members serving within the 48 contiguous United States or District of Columbia sentenced to an unsuspended punitive discharge without confinement or with confinement to be served in the activity's brig shall be retained at the activity pending action in their cases. If the activity has no brig, such members sentenced to an unsuspended punitive discharge and confinement shall be transferred to an appropriate separation activity for confinement and retention pending action in their cases.

7. Where execution of a portion of a sentence which includes a discharge is suspended subject to a probationary period, the suspension may be vacated pursuant to the procedure set forth in paragraph 97b of the Manual for Courts-Martial and section 0131, Manual of the Judge Advocate General. Commanding officers shall give careful consideration to reports of offenses committed by personnel serving in such status and undertake proceedings for the vacation of suspension of the sentence where it is clearly established by the record that such action is appropriate and in the best interests of the Navy. For a new offense the commanding officer may, as appropriate, impose nonjudicial punishment or refer the offense to a courtmartial, or initiate procedure for a vacation of suspension, or both. Upon receipt of action vacating suspension of a sentence involving a punitive discharge, the member may be transferred for discharge, or confinement and discharge, as appropriate. In such cases the instructions above shall be complied with.
B. SECNAVINST 5420.174C, Enclosure (1), Manual for Discharge Review 1984, Chapter 2, AUTHORITY/POLICY FOR DEPARTMENTAL DISCHARGE REVIEW, paragraph 2.24, Court-Martial Specifications, Presumption Concerning, states: Relevant and material facts stated in a court-martial specification, shall be presumed by the NDRB Panel as established facts. With respect to a discharge or dismissal adjudged by a court-martial case tried under the Uniform Code of Military Justice [set forth in Chapter 47 of Title 10 United States Code as amended] the action [of the NDRB] may extend only to a change in the discharge or dismissal for purposes of clemency. This policy only applies to cases filed with the discharge review board after 6 December 1983. [Source: 10 U.S.C. 1553, as amended by P.L. 98-209 of 831206.]

C. Secretary of the Navy Instruction (SECNAVINST) 5420.174C, Manual for Discharge Review 1984, Chapter 2, Authority/Policy for Departmental Discharge Review, paragraph 2.5, Authority for Review of Naval Discharges; Jurisdictional Limitations states, in part:

a.       The Board shall have no authority to:
(1)      review a discharge or dismissal resulting from a general court-martial;

(2) alter the judgement of a court-martial, except that the discharge or dismissal awarded may be changed for purposes of clemency;

(3)      revoke any discharge or dismissal;
(4) reinstate a person in the Naval Service;

(5) recall a former member to active duty;

(6) change a reenlistment code;

(7) make recommendations for reenlistment to permit entry in the naval service or any other branch of the Armed Forces;

(8) cancel or void enlistment contracts; or

(9) change the reason for discharge from or to a physical disability.

 b. Review of naval discharge shall not be undertaken in instances where the elapsed time between the date of discharge and the date of receipt of application for review exceeds fifteen years. ”

 D . SECNAVINST 5420.174C, enclosure (1), Manual for Discharge Review 1984, Chapter 9, Standards for Discharge Review, states, in part:

“9.3 Equity of the Discharge

A discharge shall be deemed to be equitable unless:

a. In the course of a discharge review, it is determined that the policies and procedures under which the applicant was discharged differ in material respects from policies and procedures currently applicable on a service-wide basis to discharges of the type under consideration, provided that:

(1) Current policies or procedures represent a substantial enhancement of the rights afforded a respondent in such proceedings; and

(2) There is substantial doubt that the applicant would have received the same discharge, if relevant current policies and procedures had been available to the applicant at the time of the discharge proceedings under consideration.

b. At the time of issuance, the discharge was inconsistent with standards of discipline in the military service of which the applicant was a member.

c. In the course of a discharge review, it is determined that relief is warranted based upon consideration of the applicant's service record and other evidence presented to the NDRB viewed in conjunction with the factors listed in this paragraph and the regulations under which the applicant was discharged, even though the discharge was determined to have been otherwise equitable and proper at the time of issuance. Areas of consideration include, but are not limited to:

(1) Quality of service, as evidenced by factors such as:

(a) service history, including date of enlistment, period of enlistment, highest rank achieved, conduct and proficiency ratings (numerical and narrative);

(b) awards and decorations;

(c) letters of commendation or reprimand;

(d) combat service;

(e) wounds received in action;

(f) records of promotions and demotions;

(g) level of responsibility at which the applicant served;

(h) other acts of merit that may not have resulted in formal recognitions through an award or commendation;

(i) length of service during the service period which is the subject of the discharge review;

(j) prior military service and type of discharge received or outstanding post-service conduct to the extent that such matters provide a basis for a more thorough understanding of the performance of the applicant during the period of service which is the subject of the discharge review;

(k) convictions by court-martial;

(l) records of nonjudicial punishment;

(m) convictions by civil authorities while a member of the service, reflected in the discharge proceedings or otherwise noted in the service records;

(n) records of periods of unauthorized absence;

(o) records relating to a discharge in lieu of court-martial.

(2) Capability to serve, as evidenced by factors such as:

(a) Total capabilities. This includes an evaluation of matters such as age, educational level, and aptitude scores. Consideration may also be given as to whether the individual met normal military standards of acceptability for military service and similar indicators of an individual's ability to serve satisfactorily, as well as ability to adjust to military service.

(b) Family and personal problems. This includes matters in extenuation or mitigation of the reason for discharge that may have affected the applicant's ability to serve satisfactorily.
(c) Arbitrary or capricious actions. This includes actions by individuals in authority which constitute a clear abuse of such authority and that, although not amounting to prejudicial error, may have contributed to the decision to discharge the individual or unduly influence the characterization of service.

(d) Discrimination. This includes unauthorized acts as documented by records or other evidence."

PART V - RATIONALE FOR DECISION
Discussion
         Issues related to the propriety of court-martial findings or sentences are not matters of which the Naval Discharge Review Board (NDRB) grants a change in discharge as a matter of propriety, since it is expressly prohibited by law from making such changes (A - C, Part IV). However, it has authority to change a discharge or dismissal for purposes of clemency (C and D, Part IV). Therefore, the applicant’s case was considered under the pertinent standards of equity to determine if any factors in the case merited clemency. After a thorough review of the records, supporting documents 1 , facts, and circumstances associated with this case, the Board determined that the characterization of the applicant’s service is equitable. The discharge shall remain : BAD CONDUCT/Conviction by Special Court-Martial, authority: NAVMILPERSMAN, Article 3640420.
The applicant’s punitive discharge, on 891017, was the sentence of a properly constituted special court-martial which was determined to be legal and proper, affirmed in the legal chain of review, and executed in accordance with applicable provisions of the Naval Military Personnel Manual (A, Part IV) . The court-martial offenses, of indecent act, liberties with a child and/or indecent language communicated to a child under 16 years, in violation of the Uniform Code of Military Justice (UCMJ), were reflective of a disregard for duty and responsibility. Such deliberate abandonment of sworn obligation characterizes the applicant’s service as having been performed under conditions warranting a Bad Conduct discharge (BCD).

In the applicant’s first issue, he states “On July 30, 1987 it was my birthday. I had the weekend off at Short Stay, Moncks Corner, S.C. Naval station Charleston S.C. Just before midnight 3 or 4 teen kids put a practical joke on me I did not know. The senior enlist parents - snowballed the joke/that night I was in the brig for unknown reason; I did not see a charge until 3 months later. (Oct 1987). I was put in my own custody trust until my own + last court hearing Dec. 9, 1987 I had 4 court hearings due to some kids civilians could not get their story accurate: no-one got hurt but ME.” Relevant and material facts stated in the court-martial specification, shall be presumed by the NDRB as established facts (B, Part IV). The Board has no authority to alter the judgement of the court-martial, except that the discharge awarded may be changed for purposes of clemency. The applicant was tried and sentenced by a properly formed and legally constituted special court-martial. The Board found no evidence that clemency is warranted.

In the applicant’s second issue, he states “It has been 10 years, 10 years to say I do not have a mark on my SSN (myself) and respectfully will do all my best to be faithful, honest.” The NDRB interprets this issue as a request for clemency due to his post-service conduct. The following information is provided for the applicant’s edification. In addition to the service record, the Board is authorized to consider post-service factors in the recharacterization of a discharge (D, Part IV). While it is true the applicant cannot go back and undo his prior mistakes, he does have the opportunity to contribute in a positive way to society and warrant clemency. Those contributions that would be looked upon favorably by this, or any other Board, include educational pursuits, employment track record, being a contributing member of society and making a positive impact in the community through volunteer work. What the Board is looking for is positive, verifiable proof in the form of current letters of recommendation/ appreciation (from friends, employers, pastor/priest, etc …), college transcripts (completed courses), a resume’, police checks, certificates of completion, proof of community service, etc. The applicant must prove that his post-service conduct has been above reproach and he is making a valid attempt at making amends for the misconduct he committed during the period of service under review. At this time the applicant has not provided sufficient documentation of good character and conduct to warrant an upgrade.

The 15 year window during which applicants may appeal their discharges was established to allow time for establishing oneself in the community and for making these substantial, documented life style changes and community contributions. The applicant is reminded that he remains eligible for a personal appearance hearing provided that an application is received within 15 years from the date of discharge.

In the applicant’s third issue, he states “Enclosed document(s) statements that I seek federal employment based on my sea + job training and school education. I respectfully need a higher RE: Code (also a chance to possibly serve in the national guard.)” This issue provides no basis for relief. As stated in the preceding paragraphs, the board has no authority to change a reenlistment code (C, Part IV).

Recorder’s Note:

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

 Copy of DD form 214.
 Letter of recommendation from K__ M__, Food Service Director, dated 930930.
 Letter of recommendation from H__ C__ and C__ R. R__, City of Bristol, Tennessee, dated 920409.
Monthly Newsletter.
Copies of previous DD form 214 (2 copies).
Letter from applicant, dated 970811 (2 pages).
Letter from applicant, dated 970808 (3 pages).
Copy of employment response letter, dated 970711.
Copy of letter from United States Senate, dated 970724.
Copy of letter from Commander Military Sealift Command to S__ T__ United States Senate, dated 970718.
Copy of approval letter for an entry level document rating of Ordinary Seaman, Wiper, and Steward’s Department, dated 970410.
Copies of passport, social security card, U.S.Merchant Mariner’s Document, and Employment Card.
Letter from applicant, dated 970920.
Letter from applicant, dated 971224 (12pgs).
Flier
Employment response letters from Military Sealift Command (3).
Police record check letters (4pgs).
Personnel Transaction Form.
Letter from Defense Finance and Accounting Service.
Page from yellow pages.
Announcement for 22nd Annual Recognition and Service Awards.
Copy of Employee Performance Appraisal (7pgs).
Employee Performance Appraisal from 951004 to 961004.
Page from Office of Personnel Management instructions.
Duplicate of Letter of recommendation from Memorial Hospital.
Original letter from United States Senate.
Letters from United States Senate (4).
Letter from applicant to the Deputy Officer of Military Sealift Command.
Employment response letter from Military Sealift Command.






PART VI - INFORMATION FOR THE APPLICANT

 Decision:
         The Board discerned no 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.


         If you believe that the decision in your case is unclear, not responsive to the issues which you raised, or does not otherwise comport with the decisional documents 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 obtain a copy of DoD Directive 1332.28 by writing to:
                  DA Military Review Boards Agency
                  Management Information and Support Directorate
                   Armed Forces Reading Room
                  Washington, D.C. 20310-1809.

         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
                  Building 36 Washington Navy Yard
                  901 M Street, SE
                  Washington, D.C. 20374-5023.

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