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NAVY | DRB | 2000_Navy | ND00-00256
Original file (ND00-00256.rtf) Auto-classification: Denied


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

ex-EOCR, USN
Docket No. ND00-00256

Applicant’s Request
The application for discharge review, received 991215, requested that the characterization of service on the discharge be changed to Honorable and the reason for the discharge be changed to Convenience of the government. The applicant requested a documentary record discharge review. The applicant listed DISABLED AMERICAN VETERANS as his representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 000803. 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 and reason 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

 (DISABLED AMERICAN VETERANS ISSUE)

1. After a review of the Former Service Members (FSM) DD Form 293 Application for the Review of Discharge or Dismissal from the Armed Forces of the United States and all of the evidence assembled for review, and request the FSM's request for the discharge upgrade to Honorable with the reason for discharge being changed to convenience of the government, by way and / or use of Clemency.

The above request is based on the following; it well known that a FSM cannot go back and change the mistakes that have been made, but they may become a positive and productive member of society, and that such post-service changes should be given due consideration.

The record reflects that Mr. B____ served two periods of Honorable service from 1-26-76 to 10- 1 -79 and 10-2-79 to 9-18-84. Then during the period of service from 9-19-84 to 2-692, the record notes the actions of Mr. B_____, with the concluding actions of the United States Navy by reason of court martial. Post service information show the FSM to have become an active and productive member of society, one who is respected by his peers.

In light of Mr. B____'s two periods of Honorable service and the credible statements of his peers and co-workers again, we ask that clemency used in this instant case with the changes being granted in the manner as requested by the FSM.

We ask for the boards careful and sympathetic consideration of all the evidence of record used in rendering a fair and impartial decision. These issues do not supersede any issues previously submitted by the applicant.

(APPLICANT'S ISSUE)

2. I would like to take this opportunity to present the following issues regarding my discharge and why I believe it should be upgraded to an Honorable Discharge The.presumption of regularity that might normally permit you to assume the U . S. Navy acted correctly in their characterizing of my military service, will be found incorrect because of the evidence submitted.

It is my firm belief that clemency is justly warranted in this case. Furthermore, I believe that it is an injustice for me to continue to suffer the adverse consequences of a Bad Conduct Discharge. -Since my release from active duty, I have continually bettered myself in the jobs and positions that I have held. Enclosed are supporting documents from past and current employers supporting this statement.

My Performance Evaluations up to and prior to this incident, stated I was a good performer and serviceman. I have received several awards and decorations, which include but are not, limited to, Two Good Conduct Awards and working on a third. Also, not to mention the fact that I received an Honorable Discharge twice before this.

It is my personal belief that the punishment that I received for the offense I committed was far to Harsh. In that, I am aware of several other service members who committed the same offense, yet received a much lighter punishment. I also belief that my command "made and example out of me because of the position I held at the time of my conviction. Also because of the local of my duty station; coupled with the fact that I was a SEABEE stationed at a Naval Air station Training Base and assigned to the Base Police. I feel that the punishment I received should not have been as extreme as it was and that the infraction was taken way to far.

 Why should I receive Courts-Martial when other service members who committed the same offense were punished via Captain's mast (ART 15). I believe that my command made a very poor decision by allowing my punishment to brought to Courts-Martial-which resulted in a Bad conduct Discharge.

I would like to also take this opportunity to make aware of the following issue: on the day preceding my Courts-Martial, my current enlistment/extension expired. I firmly believe that the only persons aware of this fact were the JAG Officers in charge of my proceedings and trial. I was not made aware of this fact until AFTER I had been awarded my punishment. I actually found this upon my surrendering my ID card at the Naval Brig. Prior to my incarceration, I was not informed of any extension an-c believe that this fact alone is just cause for reversal of my punishment. As well as establishing proof that change in my discharge should be made to reflect Honorable instead of Bad conduct.

The reason that I believe the above statement true is as follows: I was currently on a two-year extension when -I was transferred to NAS Memphis when my ID card expired (prior to my Courts Martial), that my "contract" in the United States Navy had been fulfilled and as such, I was no longer on active duty.
In lieu of the above facts, I feel that I was a civilian at the time of my punishment but that at some point, I had been placed on an involuntary extension awaiting trial and/or
 discharge. This fact was NEVER brought to my attention until after being placed into the Brig. I feel that this art serves as a miscarriage of justice in my behalf.

 In closing, I would like to express my appreciation to each board member for-your-time and attention to this matter. It is my sincere hope that you will find enough evidence to reverse my previous discharge and authorize immediate correction to state Honorable Discharge. Again, I thank you for you time and God Bless.

 Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
Copy of Employment Reference Letter
Copies of Excellent Service Letters (5)

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: USN               760126 - 791001  HON
                  USN                       791002 - 840918  HON
         Inactive: USNR (DEP)     751211 - 760125  COG

 Period of Service Under Review :
Date of Enlistment: 840919               Date of Discharge: 920206

 Length of Service (years, months, days):

         Active: 07 02 28
         Inactive: None

 Age at Entry: 18        Years Contracted: 2 (Aggregate 45 months extension)
Education Level: 12                        AFQT: 43

 Highest Rate: EO2

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.60 (7)    Behavior: 3.68 (7)                OTA: 3.65

 Military Decorations: None

 Unit/Campaign/Service Awards: M-16 Rifle Expert Ribbon, .45 Cal Pistol Ribbon, SSDRw2*, ASM, GCA(2), HSM

Days of Unauthorized Absence: None

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 :

840919:  Reenlisted at U.S. NMCB ONE LANT for 2 years.

860919:  Extended enlistment for 16 months.

871015:  Extended enlistment for 24 months.

 900119:  Extended enlistment for 5 months.
         
900618:  Special Court Martial [trial date 900618]
         Charge I: violation of the UCMJ, Article 81, (2) Specifications.
         Specification 1: Conspire with M_____ A. B_____ and S______ D. R_____ to commit an offense under the UCMJ on or about Dec 1989, ]
         Specification 2: Conspire with M____ A. B______ and S_____ D. R_____ to commit an offense under the UCMJ. Charge II: violation of the UCMJ, Article 121, (2 Specifications), Specification 1: Steal property on Dec 1989 of a value of $75.00, Specification 2: Steal property of a total value of about $220.00 on or about 11 January 1990
         Findings: to Charge I and specifications 1 thereunder, guilty , Specification 2 thereunder, guilty, excepting the words, "one pair of dress slacks of a value of about $38.00 and the figure "220.00," substituting thereof the figure "$182.00." Of the excepted words, not guilty. Of the substituted words, guilty. To Charge II and specification 1 thereunder, guilty, Specification 2 thereunder, guilty, except for the words, "one pair of dress slacks of a value of about $38.00," and the figure "220.00,"substituting thereof the figure "$182.00." Of the excepted words, not guilty. Of the substituted words, guilty.
         Sentence: CHL for 2 months, forfeiture of $482.00 per month for 2 months, reduction to E-1, Bad Conduct discharge.
         CA 900802: Sentence approved and ordered executed, except for bad conduct discharge.

 901121:  NC&PB clemency not granted; restoration denied.

 910211:  NMCCMR: The findings of guilty and sentence, as approved on review, are affirmed.
910731:  COMA: Request for appeal denied. [if applicable]

 920206:  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 separated on 920206 with Bad Conduct discharge due to conviction 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, the Board determined this issue is without merit. The Disabled American Veterans claim the applicant’s post-service information show he has become an active and productive member of society, respected by his peers. Outstanding post-service conduct can be considered to upgrade an individual’s discharge, to the extent that such matters provide a basis for a more thorough understanding of the performance of the applicant, during the period of service which is the subject of the discharge review. The applicant has demonstrated he has successfully maintained employment and is respected by his peers. However, he has not provided evidence to convince the Board he is no longer involved in activities that would be considered discreditable. Additionally, the Board looks at community service involvement, which would demonstrate the applicant’s attempt to make restitution for his misconduct. The Board determined the applicant has not provided sufficient documentation to show his character and conduct warrant clemency. Based on this issue, relief is denied.

In the applicant’s issue 2, the Board determined this issue is without merit. The applicant makes several claims in this single issue, specifically: it is an injustice to continue to suffer the adverse consequences of a Bad Conduct Discharge; his good performance evaluations, prior to his incident warrant an upgrade; he received several awards and decorations; he had two prior Honorable discharges; other service members that committed the same offense received less harsh discharge; he was being made an example of because of his position on the Base Police force; and he was no longer on active duty at the time of the court martial proceedings. It is true the consequences of a Bad Conduct Discharge do not diminish with time but the government makes provisions for clemency, provided a member complies with those requirements for relief. The applicant did not provide sufficient documentation to show he warrants clemency based on post-service conduct. The applicant’s performance evaluations, awards/decorations, and two, prior Honorable discharges reflect his performance during specific periods of service and do not reflect his court martial offenses. The applicant provided no documentation that others, who committed the same offense, received a less harsh discharge or that he was made an example, by his command. In accordance with MILPERSMAN 1050155, a member can be involuntarily extended for the purpose of court martial proceedings. Based on this issue relief is denied.
 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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