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NAVY | DRB | 2000_Navy | ND00-00159
Original file (ND00-00159.rtf) Auto-classification: Denied


DEPARTMENT OF THE NAVY
NAVAL DISCHARGE REVIEW BOARD (NDRB)
 DISCHARGE REVIEW
DECISIONAL DOCUMENT
ex-SHSR, USN
Docket No. ND00-00159

Applicant’s Request
The application for discharge review, received 991108, requested that the characterization of service on the discharge be changed to general/under honorable conditions. 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 000727. 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.

The NDRB did note an administrative error on the original DD Form 214. Block 13, Decorations, Medals, Badges, Citations and Campaign Ribbons awarded or authorized should read: “Meritorious Unit Commendation Ribbon” vice “NONE”. The original DD Form 214 should be corrected or reissued as appropriate.


PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues (verbatim)

 1. I'm asking the board to please review my case such as I need them ASAP to try & get my job back at my post office. I put the information concerning my discharge status on my application but they still had to let me go pending an upgrade on my discharge.

 Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
Copy of DD Form 214 (2 copies)
Twenty-one pages from applicant's service record

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: 820604               Date of Discharge: 860923

 Length of Service (years, months, days):

         Active: 04 03 20
         Inactive: None

 Age at Entry: 18                          Years Contracted: 4

 Education Level: 11                        AFQT: 44

 Highest Rate: SHSA

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 2.63 (3)    Behavior: 2.47 (3)                OTA: 2.60

 Military Decorations: None

 Unit/Campaign/Service Awards: MUC

Days of Unauthorized Absence: 401

Character, Narrative Reason, and Authority of Discharge (at time of issuance):

BAD CONDUCT/Convicted by special court martial, authority: NAVMILPERSMAN, Article 3640420. Discharged in absentia.

 Chronological Listing of Significant Service Events :

830303:  NJP for violation of UCMJ, Article 117: Wrongful use of reproachful words, violation of UCMJ, Article 128 (2 specs): (1) Wrongfully struck MSSN on 1Feb83, (2) Unlawfully grabbed MSSA on the buttocks on 15Feb83, violation of UCMJ, Article 134: Drunk and disorderly on 15Feb83.
         Award: Forfeiture of $150 per month for 2 months, reduction to SHSR, oral admonition. Reduction suspended for 6 months. No indication of appeal in the record.
830310:  Retention Warning: Advised of deficiency (Minor disciplinary infractions.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

830425:  Substance Abuse Report: Alcohol abuse Feb82 to Feb83, 1 to 3 times per week, ashore off duty. Applicant found not dependent and recommended for Level I treatment. Military police Feb83. Commanding officer recommended retention and discipline/provide leadership guidance/provide onboard motivational education/counsel by SAC.

830505:  Vacate reduction to SHSR awarded at CO's NJP dated 3Mar83.

830505:  NJP for violation of UCMJ, Article 95: Resist apprehension on 17Apr83, violation of UCMJ Article 128: Assault and battery on 17Apr83, violation of UCMJ Article 134: Drunk and disorderly on 16Apr83.
         Award: Forfeiture of $150 per month for 2 months, extra duty for 30 days, and oral admonition. No indication of appeal in the record.
830524:  Counseling: Advised of deficiency (Military behavior which resulted in two nonjudicial punishments administered in accordance with the UCMJ. SHSR (applicant) has been referred to the counseling and assistance center, ADAK, for further evaluation and rehabilitation.), notified of corrective actions and assistance available and advised of consequences of further deficiencies .

840223:  NJP for violation of UCMJ, Article 86: Unauthorized absence from 0630, 23Jan84 to 1200, 27Jan84 (4 days/surrendered).
         Award: Forfeiture of $75 per month for 2 months, restriction and extra duty for 10 days, reduction to SHSR. Reduction suspended for 4 months. No indication of appeal in the record.
840502:  Report of Declaration of Deserter (NAVPERS 1600-3). Applicant declared a deserter on 840502 having been an unauthorized absentee since 0630, 840402 from USS NIMITZ (CVN 68).

840730:  Report of Declaration of Deserter (NAVPERS 1600-3). Applicant declared a deserter on 840725 having been an unauthorized absentee since 0630, 840525 from USS NIMITZ (CVN 68).

850627:  Report of Return of Deserter. Applicant surrendered to military authorities on 850625 (1400). Returned to military control 850625 (1400) at TPU GLAKES, IL. Retained onbd TPU NAS Norfolk, VA pending return to USS NIMITZ.

850826:  Special Court Martial
         Charge I: violation of the UCMJ, Article 86, (3 specifications).
         Specification 1: Unauthorized absence 0630, 2Apr84 to 0800, 1May84 (29 days/S).
         Specification 2: Unauthorized absence 1500, 4Jun84 to 0630, 8Jun84 (3 days/S).
         Specification 3: Unauthorized absence 0630, 25Jun84 to 1400, 25Jun85 (365 days/S).
         Findings: to Charge I and specifications thereunder, guilty.
         Sentence: CHL for 90 days, reduction to SHSR, Bad Conduct discharge.
         CA 851002: Sentence approved and ordered executed, except for bad conduct discharge.

850826:  Joined NAVSTA Philadelphia, PA for confinement.

851017:  Applicant waived his rights to departmental level clemency review by the Naval Clemency and Parole Board.
851108:  From confinement; to appellate leave.

851112:  NMCCMR: The findings of guilty and sentence, as approved on review, are affirmed.
860828:  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 860923 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'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. The applicant is reminded that he remains eligible for a personal appearance hearing provided that an application is received within 15 years from the date of discharge.

In addition, the Board has no obligation to change the applicant’s discharge in order to allow him to obtain better employment. No relief will be granted based on this issue.

 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 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, D.C. 20374-5023   



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