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NAVY | DRB | 1999_Navy | ND99-00943
Original file (ND99-00943.rtf) Auto-classification: Denied


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

ex-SR, USN
Docket No. ND99-00943

Applicant’s Request
The application for discharge review, received 990630, requested that the characterization of service on the discharge be changed to honorable and the reason for the discharge be changed to convenience of the government and RE-1 code. 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 000411. 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. The discharge was unfair because the CPO of my division discriminated against me constantly for unknown reasons which created a negative response from me.

2. I was much younger at the time of my discharge and did not understand the serious consequences of having this type of discharge on my record for the rest of my life.

3. If I were currently enlisted this discharge would not take place as now I understand the responsibility and honor that it is to be a part of the military for many different reasons.

4. I did not know at that time what career choice to make so I enrolled in the apprentice training program which made it difficult to become designated into a rate that would be rewarding, and this discouraged me, this created a negative livelihood or a "hopeless" feeling if you will . Again, this would not happen to me today.

5. The discharge is unfair because at the time it took place I was young and naïve and did not have a full understanding of what it meant to be released from the military with a BCD. At the time of discharge, if I knew what I know now, this discharge would not have taken place in the manner in which it did.

6. I wish to have the discharge upgraded to Honorable and I also wish to have the Re-enlistment code changed from RE-4 to RE-1. I have put some serious thought into enlisting in the armed forces again, however, this time with more knowledge as well as the desire to succeed in life.

7. The discharge was unfair because the apprentice training program was not thoroughly explain to me at the time that I enlisted. At the time that I enlisted, I scored high enough on the ASFAB test to become IC personnel, however, since I was uncertain I enrolled in the apprentice training program instead.

Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
Letter from applicant (2pgs)
Employment reference letter
Transcript from Platt College
Copy of Associate of Arts Degree
Character reference letter from wife

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: USN                        None
         Inactive: USNR (DEP)     870120 - 870125  COG

 Period of Service Under Review :
Date of Enlistment: 870126               Date of Discharge: 891025

 Length of Service (years, months, days):

         Active: 02 05 13
         Inactive: None

 Age at Entry: 20                          Years Contracted: 4

Education Level: 12                        AFQT: 57

 Highest Rate: SA

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.00 (1)    Behavior: 2.80 (1)                OTA: 3.00

 Military Decorations: None

 Unit/Campaign/Service Awards: None

Days of Unauthorized Absence: 35

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 :

870226:  Retention Warning: Advised of deficiency (Drug abuser as per entry level accession urinalysis test positive for THC (Cannabis/Marijuana) controlled substance.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

871003:  Retention Warning: Advised of deficiency (Coming in late for work and taking off during working hours unauthorized absents from appointed place of duty), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

871020:  Retention Warning: Advised of deficiency (SNM was instructed to purchase items needed to complete this sea bag, and failed to do so. Item; boondockers (shoes), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

871024:  Retention Warning: Advised of deficiency (Page 13 entry 871003, page 13 entry 871020 and reason given to UA on 871024 from 0500-0730), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

880119:  NJP for violation of UCMJ, Article 86: Unauthorized absence (3 specs) from 880111 to 880115, a period of 4 days, 6 hours and 30 minutes.
         Award: Correctional Custody for 30 days. No indication of appeal in the record.

880327:  Retention Warning: Advised of deficiency (Violation of UCMJ Article 86: Unauthorized absence.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

880327:  NJP for violation of UCMJ, Article 86: Unauthorized absence from 880318-880321 (3days/S).
         Award: Forfeiture of 1/2 pay per month for 2 months (suspended for 3 months). No indication of appeal in the record.

880614:  Retention Warning: Advised of deficiency (Violation of UCMJ, Article 91: Disrespect to a Superior Chief Petty Officer on or about 880513), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

880722:  NJP for violation of UCMJ, Article 86: (8 Specifications), Spec 1: UA from 880706-880707 (1day/S), Spec 2: UA from 880808-880711 (3days/S), Spec 3: Failed to go on 880711, Spec 4: UA from 880712-880713 (1day/S), Spec 5: UA 0715-1400, 880718, Spec 6: UA from 0715-0900, 880719, Spec 7: 0715-1600, 880720, Spec 8: UA from 0715-1850, 880722.
         Award: Forfeiture of 1/2 pay per month for 2 months, restriction and extra duty for 45 days (suspended for 6 months). No indication of appeal in the record.
880821:  Pretrial Restraint 880821-880831.

880831:  Special Court Martial [trial date 880831]
         Charge I: violation of the UCMJ, Article 86: Unauthorized absence 880729-880821 (23days/A). Charge II: violation of the UCMJ, Article 134: Wrongful possess with intent to deceive, a certain instrument purporting to be a military identification card on 880821.
         Findings: to Charge I and specification 1 thereunder, guilty. To Charge II and specification 1 thereunder, guilty except "with intent to deceive".
         Sentence: CHL for 2 months, forfeiture of $400 per month for 2 months, reduction to E-1, Bad Conduct discharge.
         CA 881118: Sentence approved and ordered executed, except for bad conduct discharge.
        
881011:  Applicant waived clemency review {Extracted from NC&PB computer system}.
890214:  NMCCMR: The findings of guilty and sentence, as approved on review, are affirmed.
890629:  COMA: Request for appeal denied.

 890802:  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 891025 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 first issue states: “The discharge was unfair because the CPO of my division discriminated against me constantly for unknown reasons which created a negative response from me.” The applicant provided no documentation to support this issue and the NDRB found no evidence in the record to support it. Relief not warranted.

 The applicant’s second issue states: “I was much younger at the time of my discharge and did not understand the serious consequences of having this type of discharge on my record for the rest of my life.” The Board found that the applicant’s age, education level, and test scores qualified him for enlistment. While he may feel his youth and immaturity were factors that contributed to his action, the record clearly reflects his willful disregard for the requirements of military discipline and demonstrated that he was unfit for further service. The record is devoid of evidence that the applicant was not responsible for his conduct or that he should not be held accountable for his actions.” Relief not warranted

The applicant’s third issue states: “If I were currently enlisted this discharge would not take place as now I understand the responsibility and honor that it is to be a part of the military for many different reasons.” The NDRB found this issue non decisional and without merit. Relief not warranted.

 The applicant’s fourth issue states: “I did not know at that time what career choice to make so I enrolled in the apprentice training program which made it difficult to become designated into a rate that would be rewarding, and this discouraged me, this created a negative livelihood or a "hopeless" feeling if you will . Again, this would not happen to me today.” The Board found that the applicant’s age, education level, and test scores qualified him for enlistment. While he may feel his youth and immaturity were factors that contributed to his action, the record clearly reflects his willful disregard for the requirements of military discipline and demonstrated that he was unfit for further service. The record is devoid of evidence that the applicant was not responsible for his conduct or that he should not be held accountable for his actions. Relief denied.

The applicant’s fifth issue states: “The discharge is unfair because at the time it took place I was young and naïve and did not have a full understanding of what it meant to be released from the military with a BCD. At the time of discharge, if I knew what I know now, this discharge would not have taken place in the manner in which it did.” The Board found that the applicant’s age, education level, and test scores qualified him for enlistment. While he may feel his youth immaturity were factors that contributed to his action, the record clearly reflects his willful disregard for the requirements of military discipline and demonstrated that he was unfit for further service. The record is devoid of evidence that the applicant was not responsible for his conduct or that he should not be held accountable for his actions. Relief not warranted.

The applicant’s sixth issue states: “I wish to have the discharge upgraded to Honorable and I also wish to have the Re-enlistment code changed from RE-4 to RE-1. I have put some serious thought into enlisting in the armed forces again, however, this time with more knowledge as well as the desire to succeed in life.” Concerning a change in reenlistment code, the NDRB has no authority to change reenlistment codes or make recommendations to permit reentry into the naval service or any other of the Armed Forces. The NDRB has no jurisdiction over reenlistment, reentry, or reinstatement into the Navy or Marine Corps. Reenlistment policy of the naval service is promulgated by the Bureau of Naval Personnel, Pers-282, 5720 Integrity Drive, Millington, TN 38055, and the Commandant, United States Marine Corps, Code MMPE5, Washington, DC 20380-3001. Neither a less than fully honorable discharge nor an unfavorable "RE" code is, in itself, a bar to reenlistment. A request for a waiver is normally done only during the processing of a formal application for enlistment through a recruiter. Relief, is therefore, denied.

The applicant’s seventh issue states: “The discharge was unfair because the apprentice training program was not thoroughly explain to me at the time that I enlisted. At the time that I enlisted, I scored high enough on the ASFAB test to become IC personnel, however, since I was uncertain I enrolled in the apprentice training program instead.” The NDRB found nothing in the record to support this non decisional issue. Relief not warranted

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 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, D.C. 20374-5023     


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