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NAVY | DRB | 1999_Navy | ND99-00833
Original file (ND99-00833.rtf) Auto-classification: Denied


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

ex-SR, USNR
Docket No. ND99-00833

Applicant’s Request
The application for discharge review, received 990601, requested that the characterization of service on the discharge be changed to general. The applicant requested a personal appearance hearing. The applicant listed AMERICAN LEGION as his representative on the DD Form 293.

Decision

A personal appearance hearing was conducted in Washington, D.C. on 000503. 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

 (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 General (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:
Employment Reference letters (3)
Character Reference letters (8)
Letters from applicant (2)
Copy of DD Form 214
Copy of Special Court Martial Order

PART II - SUMMARY OF SERVICE

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

 Period of Service Under Review :
Date of Enlistment: 820803               Date of Discharge: 841214

 Length of Service (years, months, days):

         Active: 01 11 22
         Inactive: None

 Age at Entry: 18                          Years Contracted: 6

Education Level: 12 (GED)                          AFQT: 54

 Highest Rate: SA

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: NMA                  Behavior: NMA             OTA: NMA

 Military Decorations: None

 Unit/Campaign/Service Awards: None

Days of Unauthorized Absence: 118

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 :

821228:  NJP for violation of UCMJ, Article 86(2 Specifications), On or about 1800, 821202 without authority fail to report to his appointed place of duty, to wit: NASAP Classes and did remain until 2100, 821202 (3 hours), On or about 1800, 821209 without authority fail to report to his appointed place of duty, to wit: NASAP Classes and did remain until 2100, 821209 (3 hours) .
         Award: Forfeiture of $100.00 per month for 2 months, restriction for 10 days.
        
830627:  Summary Court-Martial for violation of UCMJ, Article 86(2 Specifications), Unauthorized absence 830207-830215 [8days/S], Unauthorized absence 830301-830411 [40days/S] , violation of UCMJ Article 87: (2 Specifications), Missed ship movement on 830207 and 830329.
         Award: Confinement without hard labor for 45 days, forfeiture of $428.00 per month for 1 month, restriction for 45 days.
         CA 830627: Sentence approved and duly ordered executed.

830708:  UA from 830708-830721 [13days/A] Apprehended by Jefferson County Sheriff Department Lakewood, CO and transferred to Navy Absentee Collection Unit, Denver, CO.

830831:  Report of Declaration of Deserter (NAVPERS 1600-3). Applicant declared a deserter on 830831 having been an unauthorized absentee since 1130, 830731 from USS TRUETT (FF-1095).

830927:  Report of Return of Deserter. Applicant surrendered to military authorities on 830923 (1600) at USS TRUETT (FF-1095). Returned to military control 830923 (1600). Retained onboard.

831112:  Special Court Martial [trial date 831112]
         Charge I: violation of the UCMJ, Article 86, (2) Specifications.
         Specification 1: Unauthorized absence 830731–830923, [53 days/S]
         Specification 2: Unauthorized absence 831014-831017, [4days/S]. Charge II: violation of the UCMJ, Article 92: Failed to obey a lawful order on or about 831003.
         Findings: to Charge I and specifications 1 and 2 thereunder, guilty, to Charge II and specification 1 thereunder, guilty.
         Sentence: CHL for 3 months, forfeiture of $380.00 per month for 3 months, reduction to E-1, Bad Conduct discharge.
         CA 831123: Sentence approved and ordered executed, but the execution of that portion thereof adjudging confinement in excess of 30 days is suspended portion of the sentence will be remitted without further action.
        
831112:  Joined Naval Brig, Guantanamo Bay, Cuba, for confinement.

 831130:  Applicant waived clemency review.
831206:  Released from confinement and restored to full duty.
840509:  NMCCMR: The findings of guilty and sentence, as approved on review, are affirmed.
841126:  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 841214 with a bad conduct discharge due to conviction 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).

Although the applicant provided documentation of his employment history and character references, the NDRB found the negative aspects of his service outweighed his post service employment and character references. Relief is not warranted.

 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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