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NAVY | DRB | 1999_Navy | ND99-01246
Original file (ND99-01246.rtf) Auto-classification: Denied


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

ex-SR, USNR
Docket No. ND99-01246

Applicant’s Request
The application for discharge review, received 990927, 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 000530. 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 (verbatim)

1. I (applicant), am requesting an upgrade in my discharge. I received a bad conduct discharge at the special court martial. Since I've been out of the Navy, my life hasn't been all that pleasant. I am now 31 years old and I don't have a well-paying job. I've applied for jobs that require a background check and my background includes my service time. While I was in the Navy, I was young and I was lacking discipline. So, I had penalties for my actions. When I joined the Navy, I had plans on making a career with the USN. I've even tried to reenlist several times. It is my request and hope that my dischare be upgraded so that I may have opportunities to obtain a job that will enable me to be productive and self-sufficient. Thank you.

 Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
Copy of DD Form 214

PART II - SUMMARY OF SERVICE

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

 Period of Service Under Review :
Date of Enlistment: 861115               Date of Discharge: 900605

 Length of Service (years, months, days):

         Active: 03 06 11
         Inactive: 00 00 09

 Age at Entry: 18                          Years Contracted: 8

 Education Level: 10                        AFQT: 55

 Highest Rate: SR

 Final Enlisted Performance Evaluation Averages (number of marks):

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

 Military Decorations: None

 Unit/Campaign/Service Awards: SSDR, NEM

 Days of Unauthorized Absence: 369

 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 :

870305:  NJP for violation of UCMJ, Article 134: Disrespectful toward a sentinel in the execution of his duty on 2Feb87.
         Award: Restriction and extra duty for 7 days. No indication of appeal in the record.
870305:  Retention Warning: Advised of deficiency (Violation of the Uniform Code of Military Justice.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

870331:  NJP for violation of UCMJ, Article 86: Unauthorized absence from 0500 to 1550, 16Mar87.
         Award: Forfeiture of $100 per month for 1 month, restriction and extra duty for 7 days. No indication of appeal in the record.
870603:  Applicant declared a deserter.

 870701:  NJP for violation of UCMJ, Article 85: Desertion 0001, 18May97 to 1730, 12Jun87 (25 days/apprehended).
         Award: Forfeiture of $100 per month for 2 months, restriction and extra duty for 45 days. No indication of appeal in the record.
870826:  Retention Warning: Advised of deficiency (Disrespect toward petty officer's Article 91 UCMJ.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

871020:  Applicant to unauthorized absence, 0530 to 1630, 20Oct87.

 871022:  NJP for violation of UCMJ, Article 117: Provoking gestures on 1Oct87, violation of UCMJ Article 128: Assault upon a petty officer on 1Oct87.
         Award: Forfeiture of $100 per month for 2 months, restriction and extra duty for 15 days. No indication of appeal in the record.
880509:  Applicant declared a deserter.

 881101:  Applicant apprehended by civil authorities 0530, 1Nov88. Returned to military control 0600, 1Nov88.
890102:  Applicant declared a deserter.

 890420:  Applicant apprehended by civil authorities 0202, 20Apr89. Returned to military control 0353, 20Apr89.
890529:  Special Court Martial
         Charge I: of the UCMJ, Article 86, (2 specifications).
         Specification 1: Unauthorized absence from 0715, 9Apr88 until 0530, 1Nov88 (206 days).
         Specification 2: Unauthorized absence from 0715, 2Dec88 until 0202, 20Apr89 (138 days).
         Findings: to Charge I and specifications 1 and 2 thereunder, guilty.
         Sentence: Confinement for 80 days, forfeiture of $200 per month for 3 months, reduction to SR, bad conduct discharge.
         CA 890711: Sentence approved and ordered executed, except for bad conduct discharge.
        
890821:  NMCCMR: The findings of guilty and sentence, as approved on review, are affirmed.
900521:  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 900605 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).

In the applicant’s issue 1, relevan t and material facts stated in a court-martial specification are presumed by the NDRB to be established facts. With respect to a discharge or dismissal adjudged by a court-martial case tried under the Uniform Code of Military Justice, the action of the NDRB extends only to a change in the discharge or dismissal for purpose of clemency. (B, art IV). At this time, the applicant has not provided any documentation of good character and conduct. Therefore no relief will be granted.

Pertinent Regulation/Law (at time of discharge)

 A . The Naval Military Personnel Manual, (NAVPERS 15560A), Change 9, effective 14 Dec 89 until 14 Aug 91, 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 view DoD Directive 1332.28 and other Decisional Documents by going online at " afls14.jag.af.mil ".

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
                  720 Kennon Street SE Rm 309
                  Washington Navy Yard DC 20374-5023      


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