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NAVY | DRB | 1999_Navy | ND99-00803
Original file (ND99-00803.rtf) Auto-classification: Denied


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

ex-SMSR, USN
Docket No. ND99-00803

Applicant’s Request
The application for discharge review, received 990528, requested that the characterization of service on the discharge be changed to general/under honorable conditions. 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 000214. 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 (verbatim)
1. My Undesirable Discharge was inequitable because it was based on one isolated incident in 26 months of service with no other adverse action. I was a very young man with a troubled childhood and my wife was in the process of asking for a divorce because of my long absences from home. All of these things led to my poor decision of running away. I was in a U.A. status and did not return due to fear and was later charged with desertion. If you will review my entire records, you will see that I was on my way to a promising career with the US Navy and up until the incident in question I had been promoted rapidly and praised by my superiors. Since my discharge, I have continually tried to better myself and the community in which I live. I currently serve as President of a small corporation in New Castle, Indiana and I would like to continue to improve myself and give back to the people who have helped me. This upgrade would further enable me to achieve this goal. I have included some of the certificates of some of my achievements since my release from active service.

 Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
Copy of DD Form 214
High school diploma
Correctional Officer certificate
Advanced Training certificate
Emergency Medical Technician certificate

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: USN                        000000 - 000000  HON
         Inactive: USNR (DEP)     000000 - 000000  COG

 Period of Service Under Review :
Date of Enlistment: 840821               Date of Discharge: 880405

 Length of Service (years, months, days):

         Active: 03 00 20
         Inactive: None

 Age at Entry: 17                          Years Contracted: 4 (12 months extension)

 Education Level: 11                        AFQT: 60

 Highest Rate: SM3

 Final Enlisted Performance Evaluation Averages (number of marks):

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

 Military Decorations: None

 Unit/Campaign/Service Awards: Navy “E” Ribbon, SSDR

 Days of Unauthorized Absence: 162

 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 :
861030:  Report of Declaration of Deserter (NAVPERS 1600-3). Applicant declared a deserter on 861030 having been an unauthorized absentee since 0730, 860818 from USS ALAMO.

870126:  Report of Return of Deserter. Applicant apprehended by [military authorities] civil authorities on 870126 (0946) at international border, San Ysidro, CA. Returned to military control 870126 (1425). Delivered to International Border Shore Patrol, San Ysidro, CA.

870309:  Special Court Martial
         Charge I: violation of the UCMJ, Article 85.
         Specification 1: Unauthorized absence 860818 – 870126, [161 days/A.]    
         With intent to remain away permanently.
         Findings: to Charge I and specification 1 thereunder, not guilty, but guilty of the lesser included offense of Article 86 except the words “and with intent to remain away permanently.
         Sentence: Bad Conduct Discharge, CHL for 2 months, reduction to E-1.
         CA 870309: Sentence approved and ordered executed, except for bad conduct discharge.
         SA: see SSPCMO.

870309:  Joined Naval Brig, San Diego, for confinement.

870328:  From confinement, to appellate leave.
870328:  Joined for record purposes only to USS ALAMO.

 871112:  NMCCMR: The findings of guilty and sentence, as approved on review, are affirmed.
880405:  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 880405 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).

In response to applicant’s issue 1, 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. (B, Part IV) 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. 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 . 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, D.C. 20374-5023     


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