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NAVY | DRB | 1999_Navy | ND99-00991
Original file (ND99-00991.rtf) Auto-classification: Denied


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

ex-AR, USN
Docket No. ND99-00991

Applicant’s Request
The application for discharge review, received 990719 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 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

 Prior to the documentary discharge review, the applicant introduced no issues as block 8 on the DD Form 293 is blank.

Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
Copies of DD Form 214 (3)
Copies from service record (29pgs)

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: USN                        None
         Inactive: USNR (DEP)     840828 - 840917  COG

 Period of Service Under Review :
Date of Enlistment: 840918               Date of Discharge: 881229

 Length of Service (years, months, days):

         Active: 03 06 02
         Inactive: None

 Age at Entry: 31                          Years Contracted: 4

Education Level: 12                        AFQT: 28

 Highest Rate: AN

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.40 (2)    Behavior: 3.30 (2)                OTA: 3.40

 Military Decorations: None

 Unit/Campaign/Service Awards: SSDR

Days of Unauthorized Absence: 178

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 :

850807:  Civil Conviction for driving while under the influence.
         Sent: $250.00 fine plus court costs, license suspended for 6 months, 60 days in jail suspended on completion of ASAP.

850807:  Retention Warning: Advised of deficiency (Civil conviction for driving under the influence), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

860927:  Retention Warning: Advised of deficiency (Misconduct as evidenced by your captain's mast on 860927 for unauthorized absence, should your conduct continue, you will create an adverse pattern of misconduct which cannot be tolerated), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

860927:  NJP for violation of UCMJ, Article 86: Unauthorized absence from 860804 - 860815, [11days/S].
         Award: Forfeiture of $225.00 per month for 2 months, restriction and extra duty for 45 days, reduction to E-2 suspended for 6 months. No indication of appeal in the record.

870629:  Report of Declaration of Deserter (NAVPERS 1600-3). Applicant declared a deserter on 870629 having been an unauthorized absentee since 0730, 870529 from USS JOHN F KENNEDY.

870830:  Report of Return of Deserter. Applicant surrendered on board USS JOHN F KENNEDY on 870825 (2230) at Norfolk VA. Retained onboard for disciplinary action.

871021:  Special Court Martial [trial dates 871021]
         Charge I: violation of the UCMJ, Article 86, (2) Specifications.
         Specification 1: Unauthorized absence 870529 – 870825, [88 days/S.]
         Specification 2: Unauthorized absence 870510 - 870527, [17 days/S]
         Findings: to Charge I and specifications 1 and 2 thereunder, guilty.
         Sentence: CHL for 90 days, forfeiture of $150.00 per month for 6 months, reduction to E-2.
         CA 871216: Approved findings and sentence.

871231:  Released from confinement and restored to full duty.

880209:  Report of Declaration of Deserter (NAVPERS 1600-3). Applicant declared a deserter on 880205 having been an unauthorized absentee since 0630, 880106 from USS JOHN F KENNEDY.

880304:  Pretrial Restraint 880304 to 880404.

880307:  Report of Return of Deserter. Applicant surrendered to military authorities on 880304 (1800) at National Airport, VA. Returned to military control 880304 (1800). Orig will retain custody until transfer to parent command.

880404:  Special Court Martial [trial dates 880404]
         Charge I: violation of the UCMJ, Article 86,
         Specification 1: Unauthorized absence 880106 – 880304, [58 days/S.]
         Findings: to Charge I and specifications 1 and 2 thereunder, guilty.
         Sentence: CHL for 40 days, reduction to E-1, Bad Conduct discharge.
         CA 880506: Sentence approved and ordered executed, except for bad conduct discharge.
        
880405:  Released from confinement and restored to full duty..

880422:  Applicant waived clemency review {EXTRACTED FROM NC&PB COMPUTER SYSETM}.
880622:  NMCCMR: The findings of guilty and sentence, as approved on review, are affirmed.
881205:  SJA: Recommended discharge be executed.

 881229:  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 881229 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 introduced no decisional issues for consideration by the Board.

 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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