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NAVY | DRB | 1997_Navy | ND97-01397
Original file (ND97-01397.rtf) Auto-classification: Denied


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



ex-SR, USN
Docket No. ND97-01397


 Applicant’s Request
The application for discharge review, received 970919, requested that the characterization of service on the discharge be changed to general/under honorable conditions. The applicant requested a documentary discharge review and listed the American Legion as his representative on the DD-293.

Summary of Review

A documentary discharge review was conducted in Washington, D.C. on 980928. The NDRB determined that the discharge properly and equitably reflects the quality of service rendered. The discharge shall remain: BAD CONDUCT/Convicted by special court martial, authority: NAVMILPERSMAN, Article 3640420.
BCD8706 - THIS IS THE CORRECT SHELL FOR A BCD FOR THE PERIOD
15 JUN 87 UNTIL 13 Dec 89), MILPERSMAN Article 3640420, SPN CODES :
CODE – Narrative Reason for separation.
JJB - Convicted of homosexuality by (special) or (general court martial)
JJC - Convicted of desertion by (special) or (general court martial)
JJD – Convicted by (special) or (general court martial)

PART I - APPLICANT’S ISSUES (verbatim)



 1. (EQUITY ISSUE) Pursuant to 10 USC 874 (b) (1994) (UCMJ article 74) and in accordance with SECNAVINST 5420.174C, enclosure (1), paragraph 2.24 and 9.3, this former member requests the Board’s clemency relief with up-grade of his characterization of service to under other than 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)                851017 - 851021  COG

 Period of Service Under Review :
Date of Enlistment: 851022                        Date of Discharge: 881005

 Length of Service (years, months, days):
         Active: 01 07 07
          Inactive: None

 Age at Entry: 19                                   Years Contracted: 4

 Education Level: 12                                 AFQT: 36

 NEC: DG-9770                              Highest Rate: SN

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.10 (2)             Behavior: 3.10 (2)                OTA: 3.10 (2)

 Military Decorations: None
Unit/Campaign/Service Awards: None
Nonjudicial Punishment(s): 1              Court(s)-Martial: 1 (SPCM)

Days of Unauthorized Absence: 124
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


851022:  Joined NAVCRUITRACOM Orlando, FL.

 860113:  Retention Warning: Advised of deficiency (fraudulent entry by failing to disclose pre-service involvement with civil authorities, to wit: DUI); notified of corrective actions and assistance available; advised of the consequences of further deficiencies, and issued a discharge warning. Receipt acknowledged.
860912:  Joined USS LUCE (DDG-38) Mayport, FL.

860922:  NJP for violation of UCMJ, Article 134: Drunk and disorderly (unspecified), and Article 134: Drunkenness, intoxicated, incapacitated (unspecified).
         Award: Correctional Custody Unit for 30 days. There was no indication of an appeal in the record.

871001:  Joined Naval Brig, Naval Air Station, Jacksonville, FL for confinement.
871015:  Special Court-Martial (SPCM) for the violation of UCMJ, Article 86: Unauthorized absence (UA) from 1400, 870529 until 0800, 870930 (124 days/Surrendered at CSD, Houston, TX.), and Article 87: Missing Ship’s Movement through design 870529.  
         Findings: Pled guilty to both offenses; found guilty of both offenses.
         Sentence: CHL for 45 days, forfeiture of $300 for one month, reduction to E-1, and a Bad Conduct discharge.
         CA (880428) Commanding Officer, USS LUCE approved the sentence and, except for that part of the sentence extending to a bad conduct discharge, directed its execution.
        
871105:  From confinement and restored to full duty.

 880531:  NMCCMR: The findings of guilty and sentence, as approved on review, are affirmed.
880928:  Commander, Helicopter Wings, Atlantic SSPCMO: Article 71c, UCMJ, having been complied with, Bad Conduct discharge ordered executed.

881005:          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. The 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.”

C. The 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
         After a thorough review of the records, supporting document 1 , facts, and circumstances unique to this case, the Board determined that the reason for the discharge was proper and that the characterization of the applicant’s service was equitable. The discharge shall remain : BAD CONDUCT/Convicted by special court-martial, authority: NAVMILPERSMAN, Article 3640420.

          The applicant was discharged with a Bad Conduct discharge on 881005. The Bad Conduct discharge 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, Part IV). The Board found the applicant’s discharge to be both proper and equitable (B and C, Part IV).
         In the applicant’s issue, he requests that the Board’s clemency relief with up-grade of his characterization of service to under other than 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 (C, 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 no supporting documentation that would warrant clemency.

Recorder’s Note:

 1 In addition to the service record, the following additional document, submitted by the applicant, was considered: Copy of DD form 214.

PART VI - INFORMATION FOR THE APPLICANT

 Decision:
         The Board discerned no impropriety or 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 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 document 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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