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NAVY | DRB | 1999_Navy | ND99-01196
Original file (ND99-01196.rtf) Auto-classification: Denied


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

ex-SR, USN
Docket No. ND99-01196

Applicant’s Request
The application for discharge review, received 990913, requested that the characterization of service on the discharge be changed to honorable. The applicant requested a documentary record discharge review. The applicant listed DEPARTMENT OF VETERAN AFFAIRS as his representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 000512. 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 original DD 214 stated my discharge as honorable. 27 Aug 79 - 3 Mar 80 I was in the 4 X 10 program. I was reactivated to the fleet. (I'm a SEABEE). Due to problems of mate and drinking I went AWOL. I believe I served my country best I could under the circumstances. I was young, in love, and didn't have much sense back then. Here I'm 20 yrs later asking you to forgive me and upgrade my discharge back to its original status of Honorable.

Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
Record Information Letter from Dept of Veteran Affair

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: USN                        None
         Inactive: USNR-R                  790703 - 811118  HON

 Period of Service Under Review :
Date of Enlistment: 811119               Date of Discharge: 850110

 Length of Service (years, months, days):

         Active: 01 03 21
         Inactive: None

 Age at Entry: 20                          Years Contracted: 6

 Education Level: 12 (GED)                          AFQT: 52

 Highest Rate: SN

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.40 (1)    Behavior: 3.20 (1)                OTA: 3.20

 Military Decorations: None

 Unit/Campaign/Service Awards: None

Days of Unauthorized Absence: 505

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 :

820316:  UA from NAVSTA NORVA since 0001, 820306 after failing to comply with TAO NO. 108-82 dated 820305 to report no later than 2400, 820305 issued by NAVSTA NEW YORK. Surrendered onboard NAVSTA NORVA 1825, 820306. A period of about 18 hours, 24 minutes.

820324:  NJP for violation of UCMJ, Article 86: UA from 0001, 811231 to 820304 and from 0001, 820306 to 1825, 820306, violation of UCMJ Article 92: Failure to obey a lawful order on 0625, 820322, by sleeping past 0615.
         Award: Forfeiture of $200.00 per month for 2 months, restriction and extra duty for 30 days, reduction to E-2. No indication of appeal in the record.
820912:  Report of Declaration of Deserter (NAVPERS 1600-3). Applicant declared a deserter on 820511 having been an unauthorized absentee since 2400, 820411 from USS MOUNT BAKER.

830909:  Released from pretrial confinement.

830909:  Restricted in lieu of arrest from 830909 to 830919.
        
831220:  Special Court Martial [trial dates 831206 – 831220]
         Charge I: violation of the UCMJ, Article 85: Desertion from 820411 until 839829 (505days/A)
         Findings: to Charge I and specifications 1 thereunder, guilty.
         Sentence: CHL for 3 months, forfeiture of $350.00 per month for 3 months, reduction to E-1, Bad Conduct discharge.
         CA 840120: Sentence approved and ordered executed.

840125:  Report of Return of Deserter. Applicant surrendered onboard NAVSTA NEW YORK, NY on 840118 (1307). Returned to military control 840118 . Retained onboard NAVSTA CHASN, SC awaiting disciplinary action.

840330:  Released from pretrial confinement.

840430:  Applicant waived clemency review {EXTRACTED FROM NC&PB CARD FILES}.

840720:  NMCCMR: The findings of guilty and sentence, as approved on review, are affirmed.
841214:  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 850110 with a bad conduct due to convicted 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).
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 provided no post service documentation to warrant the Board’s consideration for an upgrade. 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.

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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