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NAVY | DRB | 1999_Navy | ND99-01076
Original file (ND99-01076.rtf) Auto-classification: Denied


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

ex-SR, USN
Docket No. ND99-01076

Applicant’s Request
The application for discharge review, received 990805, requested that the characterization of service on the discharge be changed to general/under honorable conditions and the reason for the discharge be changed to undesirable/under other than honorable or general/under 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 000417. 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 undesirable discharge I wish to have it changed to honorable of possible or what discharge review is appropriate other than or general. It was based on incidents that I did in a bad time and I have changed everything around for the positive.

2. My undesirable discharge is improper in concerning my post military service conduct in my personal life and medical field career I have worked hard for.

3. I wish to use the G.I.Bill to finish my nursing school and would like to have the VA benefits. To change my discharge to a positive status.

 Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
Copy of DD Form 214
Copy of Personal Statement (4pgs)
Copy of Social Security Card
Copy of Driver's License
Copy of Basic Life Support Certificate
Copy of Emergency Medical Technician Certificate
Copy of Hemodialysis Technician Certificate
Copy of Phlebotomy Training Certificate
Copies of Employment Reference Letters (4)
Copy of Technical Training Certificate
Copy of Seaman of the Week Letter
Copies of Letter of Commendation (2)
Copy of Performance Memo for the record
Copy of Certificate of Completion for Congestive Heart Failure
Copy of Certificate of Completion for Renal Placement Modalities
Copy of Certificate of Completion for Cerebral Vascular Accident
Copy of Certificate of Completion for Diabetic Ketoacidosis
Copy of Certificate of Completion for Chronic Obstructive Pulmonary Disease
Copy of Certificate of Completion for Anemia Management
Copy of Certificate of Completion for HIV/AIDS
Copy of Certificate of Completion for Renal Osteodystrophy
Copy of Certificate of Completion for Infection Control
Copy of Certificate of Completion for Body Mechanics
Copies of Employment Reference Letters (8)
Copy of CPR Instructor Letter from Umpqua Community College.
Copy of Letter from Coordinator of Redwood Dialysis
Resume (4pgs)
Copy of Letter of Certification for Hemodialysis (2)
Copy of Emergency Medical Technician Refresher Certificate
Copy of Emergency Medical Technician 1 Exam Certificate
Copy of Certificate of Completion for EMT DEFID - AED/SAD Class
Copy of Certificate of Completion for AED/SAD Class(15 hours)
Copy of Certification Letter and Certificate for EMT from Oregon Department of Human Resources (2)
Copies of grade reports from Umpqua Community College (3)
Copy of Transcript from Umpqua Community College
Copy of Notice of Certification for Hemodialysis Technician
Copy of Basic Life Support Certificate
Copy of Advanced Level Practical Exam
Copy of Technical Training Class Award
Letter of Completion for Trauma/Gunshot Wounds
Letter of Completion for Vehicle Extrication
Letter of Completion Resp Emergencies/Acid Base (2)
Letter of Completion for Trauma Case Review
Letter of Completion for Haz Mat Awareness

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: 881130               Date of Discharge: 930408

 Length of Service (years, months, days):

         Active: 03 09 02
         Inactive: 00 01 04

 Age at Entry: 19                          Years Contracted: 8

 Education Level: 12                        AFQT: 34

 Highest Rate: SN

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 2.73 (3)    Behavior: 2.73 (3)                OTA: 3.40

 Military Decorations: None

 Unit/Campaign/Service Awards: None

Days of Unauthorized Absence: 160

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 :

890104:  Ordered to active duty for 36 months under the Active Mariner program.

900702:  UA from 900702 to 900707 [5days/S].

 900809:  NJP for violation of UCMJ, Article 86: Absent himself from his unit for a period of 3 hours, violation of UCMJ Article 87: Willfully missed ship's movement for a period of 5 days.
         Award: Forfeiture of $210.00 per month for 2 months, restriction and extra duty for 10 days. No indication of appeal in the record.

910502:  Report of Declaration of Deserter (NAVPERS 1600-3). Applicant declared a deserter on 910417 having been an unauthorized absentee since 0600, 910318 from USS INGRAHAM (FFG-61).

910529:  Report of Return of Deserter. Applicant returned to military control at NAVSTA LONG BEACH CA at 1559, 910528. Retained onboard TPU NAVSTA LONG BEACH CA for disciplinary action.
910807:  Report of Declaration of Deserter (NAVPERS 1600-3). Applicant declared a deserter on 910805 having been an unauthorized absentee since 0715, 910705 from TPU NAVSTA LONG BEACH CA.

910909:  Report of Return of Deserter. Applicant surrendered to military authorities on 910831 (1000) at NAVRESCEN PORTLAND, OREGON Returned to TPU NAVSTA LONG BEACH, CA 910831 (1510). Retained onboard TPU NAVSTA LONG BEACH CA for pending disciplinary/action disposition.

910909:  Pretrial restraint 910909 to 911007.

911007:  Special Court Martial [trial date 911007]
         Charge I: violation of the UCMJ, Article 86, (5) Specifications.
         Specification 1: Unauthorized absence from his unit 910304 – 910320, [16 days/A.]; Specification 2:Unauthorized absence from his unit 910318 to 910526 [72days/S), Specification 3: Unauthorized absence from his unit 910526 to 910628[2days/S], Specification 4: Unauthorized absence from his unit 910705 to 910831[56days/S), Specification 5: Unauthorized absence from his unit 910830 to 910908[9days/S].
         Findings: to Charge I and specifications 1 2 4 and 5 thereunder, guilty. Charge I and specification 3 thereunder, not guilty.
         Sentence: CHL for 60 days, forfeiture of $350.00 per month for 2 months, reduction to E-1, Bad Conduct discharge.
         CA 911104: Sentence approved, and except for that part of the sentence extending to a bad conduct discharge will be executed, but the execution of that part of the sentence extending to confinement in excess of 45 days is suspended for 6 months from the date of trial, at which time, unless the suspension is sooner vacated, the suspended part of the sentence will be remitted without further action.
        
911015:  Applicant waived clemency review.

 921223:  NMCCMR: The findings of guilty and sentence, as approved on review, are affirmed.
930408:  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 930408 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).

Responding to the applicant’s first issue, the Board found nothing in the records, nor did the applicant provide anything to indicate or to show that there exists an error of fact, law, procedure, or discretion, associated with his discharge at the time of issuance, and that his rights were prejudiced thereby. Relief is therefore denied.

 The applicant submitted the following as issue 2: (EQUITY ISSUE) This former member further requests that the Board include provisions of SECNAVINST 5420.174C., enclosure (1), Chapter 9, as it pertains to post-service conduct, in assessing the merits of his application. The NDRB is authorized to consider post-service factors in the recharacterization of a discharge (B, Part IV). However, there is no law or regulation which provides that an unfavorable discharge may be upgraded based solely on the passage of time, or good conduct in the civilian life subsequent to leaving the service. Normally, to permit relief, an error or injustice must have been found to have existed during the period of enlistment in question. Outstanding post-service conduct, to the extent that such matters provide a basis for a more thorough understanding of the applicant’s performance and conduct during the period of service under review, is considered. The Board felt that the applicant’s post-service conduct was not of such quality to warrant an upgrade considering the applicant’s misconduct. Also, the applicant's efforts need to be more encompassing than those provided. The applicant should have produced documentation of community service and certification of non-involvement with civil authorities in order for consideration for clemency based on post-service conduct. At this time the applicant has not provided sufficient documentation of good character and conduct. Therefore no relief will be granted. He is encouraged to continue with his pursuits and is reminded that he is eligible for a personal appearance hearing provided the application is received within 15 years from the date of discharge. Relief denied.

Pertinent Regulation/Law (at time of discharge)

 A . The Naval Military Personnel Manual, (NAVPERS 15560C), Change 5, effective 05 Mar 93 until 02 Oct 96, 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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