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NAVY | DRB | 1997_Navy | ND97-01373
Original file (ND97-01373.rtf) Auto-classification: Denied


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



ex-ABFAR, USN
Docket No. ND97-01373


 Applicant’s Request
The application for discharge review, received 970909, requested that the characterization of service on the discharge be changed to honorable and the reason for discharge changed to “is diagnosed as manic deppersed, reasons found after discharge”. The applicant requested a documentary discharge review and listed American Legion as representative on his DD-293.


Summary of Review

A documentary discharge review was conducted in Washington, D.C. on 980914. The NDRB determined that the discharge was proper and equitably reflects the quality of service rendered. The discharge shall remain: BAD CONDUCT/ Convicted by special court-martial, authority: NAVMILPERSMAN, Article 3640420.
BCD9306 - CORRECT SHELL FOR A BCD FOR THE PERIOD 28 JUN 93 UNTIL 02 OCT 96 , (SPN CODE CHANGE ON 28 JUN 93), MILPERSMAN Article 3640420, SPN CODES : JJA, JJB, JJC, JJD, JJE.
NARRATIVE REASON FOR SEPARATION IS COURT MARTIAL CONVICTION.

PART I - APPLICANT’S ISSUES (verbatim)



1.       (EQUITY ISSUE) Pursuant to 10 USC 874 (b) (19940 (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 to under honorable conditions on the basis of his post-service conduct.

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active:  None
          Inactive:        USNR (DEP)                891201 - 900318  COG

 Period of Service Under Review :
Date of Enlistment: 900319                        Date of Discharge: 930826

 Length of Service (years, months, days):

          Active: 02 06 14
          Inactive: None

 Age at Entry: 20                                   Years Contracted: 4

 Education Level: 12                                 AFQT: 32

 NEC: AB-0000                              Highest Rate: ABFAR

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.00 (1)    Behavior: 2.80 (1)                OTA: 3.00

 Military Decorations: None
Unit/Campaign/Service Awards: NDSM
Nonjudicial Punishment(s): None           Court(s)-Martial: (2) SPCM

Days of Unauthorized Absence: 261

 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


 901024:          Joined USS KITTY HAWK (CV-63) in the Philadelphia Naval Shipyard, Philadelphia, PA.

901214:  Special Court-Martial (SPCM) for violation of UCMJ, Article 86: Unauthorized absence (UA) from 0001, 900722 until 0045, 901024 (94 days/Surrendered (S) onboard USS KITTY HAWK).
         Findings: Guilty.
         Sentence: Confinement at hard labor (CHL) for one month, and forfeiture of $250 for one month.
         CA (910221) Commanding Officer (CO), USS KITTY HAWK approved the sentence and ordered it executed.

910125:  UA from 0645 - 0800 (1:15 hours/S). Retained onboard pending disciplinary action. [Disciplinary action NFIR.]

910204:  UA from 0645 - 0800 (1:15 hours/S). Retained onboard pending disciplinary action. [Disciplinary action NFIR.]
910925:  SPCM for violation of UCMJ, Article 86: UA from 0645, 910222 until 1630, 910808 (167 days/Apprehended by civil authorities in Fresno, CA and returned to military control).
         Findings: Pled guilty, found guilty.
         Sentence: CHL for three months, forfeiture of $502 per month for three months, and a Bad Conduct discharge.
         CA (920116) CO, USS KITTY HAWK approved the sentence, and except for that part of the sentence extending to a BCD, directed that it will be executed.
        
910925:  Joined Navy Brig, Norfolk, VA, for confinement.

 911015:  Waived clemency review by the Naval Clemency and Parole Board (NC&PB). [Extracted from NC&PB records.]
911020:  Released from confinement; restored to full duty.

 911021:  Declined treatment at a Veteran’s Administration hospital nearest home of record for rehabilitation due to alcohol and/or drug dependency prior to discharge.
911021:  To appellate leave.

 921216:  Navy-Marine Corps Court of Military Review (NMCCMR) – “. . . the findings and sentence are correct in law and fact and that no error materially prejudicial to the substantial rights of the appellant was committed.”

930304:  Forwarded NMCCMR decision via certified mail and notified applicant of his right to appeal to the Court of Military Appeals. Letter returned, address unknown.

930614:  Joined Naval Appellate Leave Activity, Washington, DC.

930811:  CO, Naval Base, Norfolk, VA, Supplemental SPCM Order No. 21-93 states that Article 71c, UCMJ, having been complied with, a Bad Conduct discharge is ordered executed.

930826:          Discharged BAD CONDUCT/Convicted by special court martial, authority: NAVMILPERSMAN, Article 3640420.

RECORDER’S NOTE:

 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 15560C, Change 5, effective 05 Mar 93 until 02 Oct 96), 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 to assist a reviewing authority’s assessment of the propriety of a sentence and the potential of an accused for future service, the Convening Authority may, but is not required to, include a brief synopsis of the accused’s conduct record in the initial action and/or court-martial order in any case in which the circumstances are deemed appropriate by the Convening Authority.

3. In any action taken on the record to suspend a courtmartial sentence or any part thereof, which includes a punitive discharge, the Convening Authority should be guided by rule 1107, Manual for CourtsMartial, 1984, and section 0145, 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 (SECNAV) 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 Chief of Naval Personnel (CHNAVPERS), in each case. Nothing stated herein should be construed as limiting the authority of convening or higher 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 per this Manual to a separation activity. Transfer in cases of this nature shall not be effected until action has been completed by the Convening Authority, and appropriate entries have been made in the service record to show the action taken.

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 under the procedure set forth in Rule 1109, Manual for Courts-Martial and section 0150, 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 interest 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 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 9, STANDARDS FOR DISCHARGE REVIEW, states, in part:

 “9.2 Propriety of the Discharge
a. A discharge shall be deemed to be proper unless, in the course of discharge review, it is determined that:

(1) There exists an error of fact, law, procedure, or discretion associated with the discharge at the time of issuance; and that the rights of the applicant were prejudiced thereby (such error shall constitute prejudicial error if there is substantial doubt that the discharge would have remained the same if the error had not been made); or

(2) A change in policy by the military service of which the applicant was a member, made expressly retroactive to the type of discharge under consideration, requires a change in the discharge.

b. When a record associated with the discharge at the time of issuance involves a matter in which the primary responsibility for corrective action rests with another organization (for example, another Board, agency, or court), the NDRB will recognize an error only to the extent that the error has been corrected by the organization with primary responsibility for correcting the record.

c. The primary function of the NDRB is to exercise its discretion on issues of equity by reviewing the individual merits of each application on a case-by-case basis. Prior decisions in which the NDRB exercised its discretion to change a discharge based on issues of equity (including the factors cited in such decisions or the weight given to factors in such decisions) do not bind the NDRB in its review of subsequent cases because no two cases present the same issues of equity.

d. The following applies to applicants who received less than fully honorable administrative discharges because of their civilian misconduct while in an inactive duty status in a reserve component and who were discharged or had their discharge reviewed on or after April 20, 1971: the NDRB shall either recharacterize the discharge to Honorable without any additional proceedings or additional proceedings shall be conducted in accordance with the Court’s Order of December 3, 1981, in Wood v. Secretary of Defense to determine whether proper grounds exist for the issuance of a less than honorable discharge, taking into account that:

(1) An other than honorable (formerly undesirable) discharge for an inactive duty reservist can only be based upon civilian misconduct found to have affected directly the performance of military duties;

(2) A general discharge for an inactive duty reservist can only be based upon civilian misconduct found to have had an adverse impact on the overall effectiveness of the military, including military morale and efficiency.”

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."

E. 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, states, in part:

“2.5 Authority for Review of Naval Discharges; Jurisdictional Limitations

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. ”

PART V - RATIONALE FOR DECISION
Discussion
         After a thorough review of the records, supporting documents 1 , facts, and circumstances unique to this case, the Board determined that the characterization of the applicant’s service is equitable. The discharge shall remain : BAD CONDUCT/ Convicted by special court-martial, authority: NAVMILPERSMAN, Article 3640420.
         The applicant was discharged on 930826 with a Bad Conduct discharge (BCD) as the result of a SPCM. On 901214, the applicant had his first SPCM for 94 days UA at which he did not receive a BCD. On 910925, he had his second SPCM for 167 days UA at which he received a BCD. On 911015, he waived his right to have the NC&PB review his case for clemency. On 911216, the NMCCMR found the applicant’s case to be correct in law and fact, and no materially prejudicial error. On 930811, the CO, Naval Base, Norfolk, VA order the applicant’s BCD executed. The BCD was the sentence adjudged by a properly constituted SPCM, which was determined to be legal and proper, affirmed in the legal chain of review, and then executed in accordance with applicable provisions of the Navy Military Personnel Manual, (A and B, Part IV). The Board finds that the applicant’s discharge was both proper and equitable (C and D, Part IV).

          In the applicant’s issue, he requests the Board’s clemency relief with up-grade of his characterization of service to under honorable conditions on the basis of his post-service conduct. The Board recognizes that while the applicant cannot undo his past mistakes, he can contribute in a positive and significant way to society (D, Part IV). Contributions looked upon favorably by this Board include educational pursuits, employment track record, being a contributing member of society and making a positive impact in the community through volunteer work. 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 naval service under review. The 15 year window during which applicants may appeal their discharges was established to allow time for establishing themselves and making these substantial, documented life style changes and community contributions which could offset and make amends for the misconduct of record. The applicant has submitted insufficient supporting documentation that would warrant clemency.

         On the DD Form 293, the applicant requested that the reason for his discharge be changed to “is diagnosed as manic deppersed, reasons found after discharge”. The Board has no authority to change the applicant’s reason for discharge to or from a medical condition (E, Part IV). Relief can not be granted on the basis of this request.



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
Psychiatrist Letter dtd 970404
Social Security Administration, Supplemental Security Income, Notice of Award dtd 931214.

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 that 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 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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