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NAVY | DRB | 2000_Navy | ND00-00039
Original file (ND00-00039.rtf) Auto-classification: Denied


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

 ex-SKSR, USN
Docket No. ND00-00039

Applicant’s Request
The application for discharge review, received 991012, requested that the characterization of service on the discharge be changed to general/under honorable conditions. The applicant requested a personal appearance hearing before the Board in the Washington National Capital Region. The applicant listed AMERICAN LEGION as his representative on the DD Form 293. In the acknowledgement letter to the applicant, he was informed that the Naval Discharge Review Board (NDRB) first conducts a documentary review prior to any personal appearance hearing.

 Decision

A documentary discharge review was conducted in Washington, D.C. on 000720. 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

Issue

1.       (EQUITY ISSUE) Pursuant to 10 USC 874 (b) (UCMJ article 74) and in accordance with SECNAVINST 5420.174C, enclosure (1), paragraph 2.24 and 9.3, this former member requests the Board’s clemency relief with up-grade of his characterization of service to General (Under Honorable Conditions) on the basis of his post-service conduct.
Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
Copy of response letter Review Board Agency
Copy of DD Form 214
Employment Verification Letter from Drexel University
Letter from applicant (2pgs)
Reference Letter from wife
Letter from wife to Scholarship Committee
Response Letter from BCNR

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: USN                        None
         Inactive: USNR (DEP)     861121 - 861123  COG

 Period of Service Under Review :
Date of Enlistment: 861124               Date of Discharge: 921214

 Length of Service (years, months, days):

         Active: 04 08 14
         Inactive: None

 Age at Entry: 18                          Years Contracted: 4 (7 months extension)

 Education Level: 12                        AFQT: 24

 Highest Rate: SK3

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.60 (4)    Behavior: 3.45 (4)                OTA: 3.55

 Military Decorations: None

 Unit/Campaign/Service Awards: SSDR(2 ND ), NDSM

Days of Unauthorized Absence: 454

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 :

890806:  Report of Declaration of Deserter (NAVPERS 1600-3). Applicant declared a deserter on 890801 having been an unauthorized absentee since 0001, 890701 from USS HAWES.

890818:  Report of Return of Deserter. Applicant surrendered to military authorities on 890724 (0900) at NAVAL STATION PHILA, PA . Retained onboard USS HAWES.

890818:  NJP for violation of UCMJ, Article 86: Absent without leave, violation of UCMJ Article 87: Missing Movement.
         Award: Forfeiture of $100.00 per month for 2 months, restriction and extra duty for 45 days. No indication of appeal in the record.

891201:  NJP for violation of UCMJ, Article 86: Failure to go to appointed place of duty; to wit: Section III Muster.
         Award: Reduction to E-3 vacated, restriction and extra duty for 20 days, No indication of appeal in the record.

900516:  Report of Declaration of Deserter (NAVPERS 1600-3). Applicant declared a deserter on 900515 having been an unauthorized absentee since 0650, 900416 from USS HAWES.

900611:  Report of Return of Deserter. Applicant surrendered to military control on 900610 (1235) at PSD PHILA, PA . Retained onboard pending port call response and authorization for transfer via TAO to parent command.

900709:  Report of Declaration of Deserter (NAVPERS 1600-3). Applicant declared a deserter on 900613 having been an unauthorized absentee since 0745, 900613 from USS HAWES.

900709:  Report of Return of Deserter. Applicant surrendered to military control on 900709 (0930) at PSD PHILA, PA . Retained onboard pending port call response and authorization for transfer via TAO to parent command.

900914:  Report of Declaration of Deserter (NAVPERS 1600-3). Applicant declared a deserter on 900914 having been an unauthorized absentee since 1830, 900815 from TRANSITPERSU CHARLESTON SC.

910626:  Report of Return of Deserter. Applicant surrendered to military authorities 1130, 910624 at NAVBASE PHILADELPHIA, PA . Returned to military control at PSD PHILA PA 910624, 1230. Retained onboard TPU awaiting port call and transfer authorization and transfer back to parent command under TAOS.

910723:  Report of Declaration of Deserter (NAVPERS 1600-3). Applicant declared a deserter on 910708 having been an unauthorized absentee since 0745, 910708 from TRANSITPERSU CHARLESTON SC.

910903:  Pretrial restraints 910909 to 911028.

910905:  Report of Return of Deserter. Applicant surrendered to military authorities 1400, 910822 at TPU PHILA, PA . Returned to military control 1400, 910822 at TPU PHILA PA 910624, 1230. Transferred to TPU CHASN SC and retained onboard for disciplinary action/disposition.

911028:  Special Court Martial [trial date 911028]
         Charge I: violation of the UCMJ, Article 86, (6) Specifications.
         Specification 1: Unauthorized absence 900416 – 900610, [55 days/S.]
         Specification 2: Unauthorized absence 900616 – 900709, [23 days/S.]. Specification 3: Unauthorized absence 900712 – 900724, [12 days/S.]. Specification 4: Unauthorized absence 900815 – 910624, [313 days/S.]. Specification 5: Unauthorized absence 910708 – 910822, [45 days/S.]. Specification 6: Unauthorized absence 910827 – 910902, [6 days]
         Findings: to Charge I and specifications 1 through 6 thereunder, guilty.
         Sentence: CHL for 5 months, reduction to E-1, Bad Conduct discharge.
         CA 920129: Sentence approved and ordered executed, except for bad conduct discharge, but the execution of that part of the sentence adjudging confinement in excess of 120 days is suspended for a period of six months from the date of this action, at which time, unless sooner vacated, the suspended portion will be remitted without action .
        
911115:  Applicant waived clemency review.

 920828:  NMCCMR: The findings of guilty and sentence, as approved on review, are affirmed.
921214:  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 921224 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 NDRB found the applicant’s post service conduct to be commendable, however the NDRB did not find it sufficient to warrant clemency for the applicant’s BCD conviction. Relief not warranted.

 Pertinent Regulation/Law (at time of discharge)

 A . Naval Military Personnel Manual, (NAVPERS 15560C), effective 15 Aug 91 until 04 Mar 93, 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 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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