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NAVY | DRB | 1999_Navy | ND99-00401
Original file (ND99-00401.rtf) Auto-classification: Denied


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

ex-SR, USN
Docket No. ND99-00401

Applicant’s Request
The application for discharge review, received 990127, requested that the characterization of service on the discharge be changed to Honorable or General (under Honorable conditions). The applicant requested a personal appearance hearing review before a travel panel closest to Bakersfield, CA. The applicant did not list any representative on the DD Form 293. In the acknowledgement letter to the applicant, he was informed that the Naval Discharge Review Board (NDRB) first conducts a documentary review prior to any personal appearance hearing.

Decision

A documentary discharge review was conducted in Washington, D.C. on 991206. After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, NDRB 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.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

 1. I will show up in person with supporting documents.

 Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
Copy of DD Form 214

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: USN                        None
         Inactive: USNR (DEP)     860410 - 860630  COG

 Period of Service Under Review :
Date of Enlistment: 860701               Date of Discharge: 891211

 Length of Service (years, months, days):

         Active: 03 05 11
         Inactive: None

 Age at Entry: 21                          Years Contracted: 4

Education Level: 12                        AFQT: 56

 Highest Rate: SN

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.80 (1)    Behavior: 3.30 (2)                OTA: 3.80

 Military Decorations: None

 Unit/Campaign/Service Awards: None

Days of Unauthorized Absence: 426

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

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

 Chronological Listing of Significant Service Events :

870123:  Retention Warning: Advised of deficiency (Assault, Failure to obey the rules and regulations of the U.S. Navy, Setting a poor example for your peers and subordinates to follow, Bringing discredit upon yourself and the U.S.Navy.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

870123:  NJP for violation of UCMJ, Article 128: Assault consummated by a battery.
         Award: Forfeiture of $100 per month for 1 month. No indication of appeal in the record.

870313:  NJP for violation of UCMJ, Article 86: UA 0530, 870228, 0150, 870302 [2days/S].
         Award: Forfeiture of $100 per month for 2 month, restriction and extra duty for 45 days. No indication of appeal in the record.
870702:  Report of Declaration of Deserter (NAVPERS 1600-3). Applicant declared a deserter on 870701 having been an unauthorized absentee since 0730, 870601 from USS KOELSCH (FF-1049).

870707:  Report of Return of Deserter. Applicant apprehended by civil authorities on 870707 (0525) at CHASN. Returned to military control 870707 (0525). Delivered to NAVSTA CHASN and confined in brig 0810, 870707.

870826:  NJP for violation of UCMJ, Article 128: Assault.
         Awarded: Recommended for trial Special Court-Martial. Charges added to charge sheet awaiting trial.

870905:  Special Court Martial
         Charge I: violation of the UCMJ, Article 86: Unauthorized absence 870601 – 870707, [37 days/A.], Charge II: violation of the UCMJ, Article 128: Assault
         Findings: to Charge I and II, thereunder, guilty.
         Sentence: CHL for 2 months, forfeiture of $250 per month for 4 months, reduction to E-1, Bad Conduct discharge.
         CA 871016: Sentence approved and ordered executed, except for bad conduct discharge which will be suspended for 12 months from the date sentence is adjudged at which time, unless sooner vacated it will be remitted without further action, will be executed .
        
871209:  Report of Declaration of Deserter (NAVPERS 1600-3). Applicant declared a deserter on 871204 having been an unauthorized absentee since 0510, 871123 NAS JACKSONVILLE FL.

880210:  Report of Return of Deserter. Applicant surrendered to military authorities on 880210 (0102) at TPU NAVSTA SAN DIEGO CA. Returned to military control 880210 (1002). Retained onboard pending return to parent command.

880510:  Report of Declaration of Deserter (NAVPERS 1600-3). Applicant declared a deserter on 880510 having been an unauthorized absentee since 1700, 880502 from NAS JACKSONVILLE FL.

890302:  Report of Return of Deserter. Applicant surrendered to military authorities on 880510 (1200) at NRC BAKERSFIELD, CA. Transferred to NAS LEMOORE CA FFT to NAS JACKSONVILLE, FL. Returned to military control 890228 (1200). Retained onboard for disciplinary action.

890512:  Special Court Martial [trial dates 890512]
         Charge I: violation of the UCMJ, Article 85, (2) Specifications.
         Specification 1: Unauthorized absence 871123 – 880209, [78 days/S.]
         Specification 2: Unauthorized absence 880502 - 890228, [296 days/S]. Charge II: violation of the UCMJ, Article 86, (2) Specifications. Specification 1: Unauthorized absence 880304 - 880307 [3days/S], Specification 2: Unauthorized absence 880421 - 880501 [10days/S]. Charge III: violation of the UCMJ, Article 112a: Wrongful use of cocaine. Charge IV: violation of the UCMJ, Article 128: Assault.
         Findings: to Charge I and specifications 1 and 2 thereunder, guilty, except for the words "and with intent to remain away therefrom permanently" and the words "in desertion"; to the excepted words, Not Guilty; to the remaining words, Guilty; Not Guilty, but Guilty to a violation of Article 86 of the UCMJ. To Charge II, III, and IV and specification thereunder, guilty.
         Sentence: CHL for 6 months, forfeiture of $466 per month for 6 months, reduction to E-1, Bad Conduct discharge.
         CA 890626: Sentence is approved and, excepting the for bad conduct discharge, will be duly executed.
        
890512:  Joined the Brig, Naval Base, Charleston, South Carolina, for confinement.

890616:  Applicant waived clemency review {Extracted from NC&PB computer system}.

890731:  From confinement; to appellate leave.
890811:  NMCCMR: The findings of guilty and sentence, as approved on review, are affirmed.
891211:  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 891211 with bad conduct due to convicted by special court martial (A). The Board presumed regularity in the conduct of governmental affairs (B). After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, the Board found that the discharge was proper and equitable (C and D).

The applicant introduced no decisional issues for consideration by the Board.

 Pertinent Regulation/Law (at time of discharge)

 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.

B. 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.

C. Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 9, paragraph 9.2, PROPRIETY OF THE DISCHARGE.

D. Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 9, paragraph 9.3, EQUITY OF THE DISCHARGE.

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 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
                  Washington Navy Yard
                  720 Kennon Street SE Rm 309
                  Washington, DC 20374-5023       


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