Search Decisions

Decision Text

NAVY | DRB | 1999_Navy | ND99-00434
Original file (ND99-00434.rtf) Auto-classification: Denied


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

ex-UTCR, USN
Docket No. ND99-00434

Applicant’s Request
The application for discharge review, received 990208, requested that the characterization of service on the discharge be changed to honorable. The applicant requested a documentary record discharge review. The applicant listed AMERICAN LEGION as his representative on the DD Form 293.

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. (EQUITY ISSUE) Pursuant to 10 USC 874 (b) (1994) (UMCJ 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 honorable conditions on the basis of his post-service conduct.

 Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
Copy of DD Form 214
Letter from applicant
Letter from Manhattan Mental Health Center
Reference letter from Garden House Director
Reference letter from Garden House Case Manager
Claim from Department of Veteran Affairs

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: USN                        None
         Inactive: USNR (DEP)     830121 - 830821  COG

 Period of Service Under Review :
Date of Enlistment: 830822               Date of Discharge: 880304

 Length of Service (years, months, days):

         Active: 04 05 19
         Inactive: None

 Age at Entry: 19                          Years Contracted: 4 (12 months extension)

 Education Level: 12                        AFQT: 36

 Highest Rate: UTCN

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.00 (3)    Behavior: 3.06 (3)                OTA: 2.93

 Military Decorations: None

 Unit/Campaign/Service Awards: BATTLE"E"RIBBON

Days of Unauthorized Absence: None

 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 :

851231:  Retention Warning: Advised of deficiency (You have a propensity to go UA and be derelict in the performance of duties), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

851231:  NJP for violation of UCMJ, Article 86: (2 Specs), Failing to go, violation of UCMJ Article 92: Dereliction in the performance of duties.
         Award: Forfeiture of $100 per month for 2 months (1 month suspended for 6 months), extra duty for 15 days, reduction to E-2(suspended for 6 months). No indication of appeal in the record.

860611:  Retention Warning: Advised of deficiency (You have a propensity to incur debts that you are unable to pay in timely manner), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

861031:  NJP for violation of UCMJ, Article 86: absence from unit on 861006;
         violation of UCMJ, Article 92: failure to obey.
         Award: Forfeiture of $200 per month for 2 months (1 month suspended for 6 months), 30 days CCU, reduction to E-2.

861215:  DAAR indicates cocaine abuse, found not dependent on initial screening.

870326:  NJP for violation of UCMJ, Article 92: Disobeying lawful order, violation of UCMJ Article 116: Breach of peace, violation of UCMJ Article 128: (4 Specs), Assault.
         Award: Previous suspension of forfeiture of $200 per month for 1 month from CO's NJP dated 861031 vacated. Referred to SPCM, No indication of appeal in the record.

870504:  Special Court Martial [trial dates 870504]
         Charge I: violation of the UCMJ, Article 128, (3 Specifications),.
         Specification 1: Assault petty officer, by striking in the back with a pool cue, Specification 2 and 3: Assault two petty officer's, by striking them in the face with his fist. Charge II: violation of the UCMJ, Article 134: Communicate a threat to UTCA S______, to wit: "I'm in trouble, big trouble, but before it's all over, I'm going to kill you"
         Findings: to Charge I and specifications 1,2 and 3 thereunder, guilty, Charge II and specification thereunder, guilty.
         Sentence: CHL for 5 months, forfeiture of $150 per month for 5 months, reduction to E-1, Bad Conduct discharge.
         CA 870706: Sentence approved and except for bad conduct discharge will be executed; but the execution of that part of the sentence adjudging confinement in excess of thirty days is suspended for twelve months from the date of trial, at which time, unless sooner vacated, the suspended part of the sentence will be remitted without further action.
        
870504:  Joined Marine Base Correctional Facility Camp Smedley D. Butler, Okinawa, for confinement.

 870522:  Applicant waived clemency review.

870529:  From confinement; to appellate leave.
870904:  NMCCMR: The findings of guilty and sentence, as approved on review, are affirmed.
880217:  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 880304 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’s representative submitted the following as issue 1: (EQUITY ISSUE) This former member requests that the Board grant clemency relief based on his post-service conduct. The NDRB is authorized to consider post-service factors in the recharacterization of a discharge (B, Part IV). However, there is no law or regulation which provides that an unfavorable discharge may be upgraded based solely on the passage of time, or good conduct in the civilian life subsequent to leaving the service. Normally, to permit relief, an error or injustice must have been found to have existed during the period of enlistment in question. Outstanding post-service conduct, to the extent that such matters provide a basis for a more thorough understanding of the applicant’s performance and conduct during the period of service under review, is considered. The applicant provided 3 letters of recommendation as documentation of his post-service conduct. The applicant's efforts need to be more encompassing than those provided. The applicant should have produced evidence of continuing educational pursuits, a verifiable employment record, documentation of community service, certification of non-involvement with civil authorities and proof of his not using drugs in order for consideration for clemency based on post-service conduct. At this time the applicant has not provided sufficient documentation of good character and conduct. Therefore no relief will be granted. He is encouraged to continue with his pursuits and is reminded that he is eligible for a personal appearance hearing provided the application is received within 15 years from the date of discharge. Relief denied.

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 19984 (Manual for Discharge Review, 1984) enclosure (1), Chapter 2, paragraph 2.24, COURT-MARTIAL SPECIFICATION, PRESUMPTION CONCERNING.

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       

Similar Decisions

  • NAVY | DRB | 1999_Navy | ND99-00991

    Original file (ND99-00991.rtf) Auto-classification: Denied

    Specification 1: Unauthorized absence 870529 – 870825, [88 days/S.] PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW Discussion The applicant was discharged on 881229 with bad conduct due to convicted by special court martial (A). 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.

  • NAVY | DRB | 2001_Navy | ND01-00579

    Original file (ND01-00579.rtf) Auto-classification: Denied

    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. (Equity Issue) Pursuant to 10 USC 874 (b) (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...

  • NAVY | DRB | 1999_Navy | ND99-00886

    Original file (ND99-00886.rtf) Auto-classification: Denied

    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. PART I - APPLICANT’S ISSUES AND DOCUMENTATION PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW Discussion The applicant was discharged on 900417 with bad conduct due to convicted by special court martial (A).

  • NAVY | DRB | 2000_Navy | ND00-00545

    Original file (ND00-00545.rtf) Auto-classification: Denied

    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. PART I - APPLICANT’S ISSUES AND DOCUMENTATION 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).In the applicant’s issue 1, r

  • NAVY | DRB | 1999_Navy | ND99-00401

    Original file (ND99-00401.rtf) Auto-classification: Denied

    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. 870905: Special Court Martial Charge I: violation of the UCMJ, Article 86: Unauthorized absence 870601 – 870707, [37 days/A. 890512: Special Court Martial [trial dates 890512] Charge I: violation of the UCMJ, Article 85, (2) Specifications.

  • NAVY | DRB | 2001_Navy | ND01-01119

    Original file (ND01-01119.rtf) Auto-classification: Denied

    ND01-01119 Applicant’s Request The application for discharge review, received 010823, requested that the characterization of service on the discharge be changed to general/under honorable conditions. (Equity Issue) Pursuant to 10 USC 874 (b) (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 upgrade of his characterization of service to under honorable conditions on the basis of...

  • NAVY | DRB | 2000_Navy | ND00-00366

    Original file (ND00-00366.rtf) Auto-classification: Denied

    Sentence: Bad Conduct discharge. The applicant was discharged with a BAD CONDUCT discharge from a special court martial. 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 720 Kennon Street SE Rm 309 Washington Navy Yard D.C. 20374-5023

  • NAVY | DRB | 2000_Navy | ND00-00159

    Original file (ND00-00159.rtf) Auto-classification: Denied

    Documentation In addition to the service record, the following additional documentation, submitted by the applicant, was considered:Copy of DD Form 214 (2 copies) Twenty-one pages from applicant's service record PART II - SUMMARY OF SERVICE Prior Service (component, dates of service, type of discharge): Active: None Inactive: None Period of Service Under Review :Date of Enlistment: 820604 Date of Discharge: 860923 Length of Service (years, months, days):Active: 04 03 20 Inactive: None ),...

  • NAVY | DRB | 2000_Navy | ND00-00779

    Original file (ND00-00779.rtf) Auto-classification: Denied

    PART I - APPLICANT’S ISSUES AND DOCUMENTATION Documentation In addition to the service record, the following additional documentation, submitted by the applicant, was considered:None PART II - SUMMARY OF SERVICE Prior Service (component, dates of service, type of discharge): Active: USN None Inactive: USNR (DEP) 900709 - 900912 COG Period of Service Under Review :Date of Enlistment: 900913 Date of Discharge: 920826 Length of Service (years, months, days):Active: 01 09 05 Inactive: None ...

  • NAVY | DRB | 2002_Navy | ND02-00484

    Original file (ND02-00484.rtf) Auto-classification: Denied

    The Naval Discharge Review Board (NDRB) also advised that the board first conducts a documentary review prior to any personal appearance hearing. CA action 911030: Sentence approved and ordered executed.911116: Released from confinement and returned to full duty. Applicant declared a deserter on 920207 having been an unauthorized absentee since 0545, 920107 from USS THEODORE ROOSEVELT (CVN-71).920424: Report of Return of Deserter.