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NAVY | DRB | 1999_Navy | ND99-00530
Original file (ND99-00530.rtf) Auto-classification: Denied


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

ex-AR, USN
Docket No. ND99-00530

Applicant’s Request
The application for discharge review, received 990303, requested that the characterization of service on the discharge be changed to honorable. The applicant requested a documentary record discharge review. The applicant did not list any representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 000201. 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.       My discharge was inequitable because it was based on one isolated incident during my Naval Service with no other adverse action during the course of my service with the Navy (or Prior with the U.S. Army).
2.       I received a bad conduct discharge from the Navy for the following reason: I had a misunderstanding with a seaman because of a racial slur that was about me. This resulted in an argument, only verbal nothing physical, and a week later I was notified that I was scheduled for a court martial. Which I saw being very unfair. I received a severe discharge/punishment but the seaman did not in fact he was not even present at the court martial hearing. I did not request the upgrade when I was discharged because I was not aware that it could be upgraded, until now. Thereafter, since my last discharge I served in the Merchant Marines for almost eight years and never encountered any problems. I hope that you will approve my request for upgrade so I may continue to serve this great country in the near future and obtain my veterans benefits that I am entitled to.
3.       I am also requesting an upgrade to my rank. After a so called probationary period in the Navy, I was supposely able to retain my original rank of E-4 (as I had in the U.S Army). When I enlisted in the Navy, I was put into a different MOS as an E-3, but was told that after 90 days I would return to my original rank of E-4. This upgrade is requested to continue my career in the military as a professional soldier in the near future.
Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
Copies of DD Form 214 (5)
Letter from BCNR
Letters from applicant to Congress Woman A____ E_____ (2)
Letter from Congress Woman A____ E_____
Copy of DD 214 from Army
Copies of Certificates of training (4)
Copy of High School Diploma
Copy of Certificate of Achievement
Employment Reference Letters (4)
Copies of Certificates of Discharge to Merchant Seaman (7)
Copy of Merchant Marine Identification Card

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: USA                        760625 - 790622  HON
         Inactive: USNR (DEP)     None

 Period of Service Under Review :
Date of Enlistment: 801230               Date of Discharge: 850626

 Length of Service (years, months, days):

         Active: 04 03 18
         Inactive: None

 Age at Entry: 22                          Years Contracted: 3

Education Level: 12                        AFQT: 42

 Highest Rate: AN

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.60 (1)    Behavior: 3.80 (1)                OTA: 3.80

 Military Decorations: None

 Unit/Campaign/Service Awards: SSDR

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 :

831202:  Special Court Martial [trial date 831202]
         Charge I: violation of the UCMJ, Article 128: Commit assault upon AA C____ L. H____ by swinging at him with an open pocket knife. Charge II: violation of the UCMC, Article 134: Wrongfully communicate a threat to injure AA C____ L. H____ by saying to him "I'm going to slit your throat, "I'm going to cut you up, "and "you better watch over your shoulders".
         Findings: to Charge I and specifications 1 and 2 thereunder, guilty.
         Sentence: CHL for 3 months, forfeiture of $382.00 per month for 3 months, reduction to E-1, Bad Conduct discharge.
         CA 840221: Sentence approved and ordered executed.
        
831208:  Joined the Naval Station Brig Pearl Harbor, HI, for confinement.

840215:  Released from confinement and restored to full duty.
840530:  NMCCMR: The findings of guilty and sentence, as approved on review, are affirmed.
840719:  NC&PB clemency not granted; restoration denied {Extracted from NC&PB card files}.
840829:  COMA: Request for appeal denied.

 850620:  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 850626 with a bad conduct due to convicted by a 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 first issue (equity) states that the discharge awarded at the Special Court Martial was “inequitable because it was based on one isolated incident during the his Naval Service”. The applicant states that he had no other adverse action during his course of service with the Navy (or Prior with the U.S. Army). The NDRB found the applicant’s Bad Conduct Discharge, awarded as a result of a Special Courts Martial conviction, proper and equitable. The applicant contends that his misconduct was an isolated incident, the NDRB found the punitive discharge awarded for the offenses committed was warranted. Relief denied.

The applicant’s second issue (equity) states the reasons for his misconduct which resulted in his conviction at a Special Courts Martial and states that the conviction was unfair. Relevant and material facts stated in a court-martial specification are presumed by the NDRB to be established facts. With respect to a discharge adjudged by a court-martial case, the action of the NDRB is restricted to upgrades based on clemency. The applicant's case was considered under the pertinent standards of equity to determine if any factors in this particular case merited clemency. The NDRB found the applicant’s service record devoid of any mitigating or extenuating factors sufficient to offset the seriousness of the offenses for which the discharge was awarded. Relief not warranted.

The applicant’s request for an upgrade in rank is not an issue for the NDRB’s consideration. Relief not warranted.

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.



Pertinent Regulation/Law (at time of discharge)

A. Naval Military Personnel Manual, (NAVPERS 15560), Change 1/83, effective
28 Apr 83 until 14 Jun 87, 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, D.C. 20374-5023     


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