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NAVY | DRB | 2000_Navy | ND00-01032
Original file (ND00-01032.rtf) Auto-classification: Denied


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

ex-AR, USNR
Docket No. ND00-01032

Applicant’s Request
The application for discharge review, received 000908, requested that the characterization of service on the discharge be changed to honorable. The applicant requested a personal appearance hearing review. The applicant designated the 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 010301. 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. (Equity Issue) Pursuant to 10USC 874(b) (UCMJ, Article 74) and in accordance with SECNAVINST 5420.174C, enclosure (1), paragraphs 2.24 and 9.3, this former member requests the Board's clemency relief with up-grade of his characterization of service to 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 DD Form 214
Character Reference letters from 7 individuals
Miami-Dade Police Check dtd 08-31-00

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: 800326               Date of Discharge: 880826

 Length of Service (years, months, days):

         Active: 04 06 13 (Doesn't exclude UA and confinement time)
         Inactive: 03 10 20

 Age at Entry: 18                          Years Contracted: 6 (9 months extension)

 Education Level: 12                        AFQT: 56

 Highest Rate: AA

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.2 (5)     Behavior: 2.5 (5)                 OTA: 3.4

 Military Decorations: None

 Unit/Campaign/Service Awards: None

Days of Unauthorized Absence: 3

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 :

800625:  Commenced initial active duty for training.

 801028:  Released from active duty for training with a characterization of service as Honorable having served 4 months and 4 days of acdutra.
840618:  Recalled to active duty for a term of 18 months.

 850411:  NJP for violation of UCMJ, Article 112A (2 specs): wrongful use of marijuana and cocaine on or about 27FEB85.
         Award: Forfeiture of $347 per month for 2 months, restriction and extra duty for 45 days, reduction to E-2. No indication of appeal in the record.
850411:  Retention Warning: Advised of deficiency (poor military behavior and non-compliance with military rules an regulations), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

850530:  NJP for violation of UCMJ, Article 112A: wrongful use of marijuana on or about 25MAR85.
         Award: Forfeiture of $310 per month for 2 months, restriction and extra duty for 45 days, reduction to E-1. No indication of appeal in the record.
850912:  Unauthorized absentee from command since 0330, 12SEP85. Intentions unknown. Surrendered on board at 0500, 12SEP85. No known civil charges pending.

850913:  Unauthorized absentee from command since 1300, 13SEP85. Intentions unknown. Surrendered on board at 1500, 13SEP85. No known civil charges pending.

850916:  Unauthorized absentee from command since 0715, 16SEP85. Intentions unknown. Surrendered on board at 0830, 16SEP85. No known civil charges pending.

850927:  Unauthorized absentee from command since 0715, 27SEP85. Intentions unknown. Surrendered on board at 0815, 27SEP85. No known civil charges pending.

850927:  Unauthorized absence from USS INDEPENDENCE (CV62) located at PNSY, Philadelphia, PA since 1330, 85SEP27, intentions unknown.

850930:  Surrendered on aboard 0700, no known civil changes pending. Absence not excused, member charged 3 days lost time.

850930:  Unauthorized absentee from command since 0715, 30SEP85. Intentions unknown. Surrendered on board at 0800, 30SEP85. No known civil charges pending.

851108:  Unauthorized absentee from command since 1530, 08NOV85. Intentions unknown. Surrendered on board at 0700, 09NOV85. No known civil charges pending.

 851220:  Extended active duty obligation for 12 months.
860108:  Special Court Martial [trial dates 8 Jan 86, 17 Jan 86 and 10 Mar86]
         Charge I: violation of the UCMJ, Article 86, 7 Specifications : Unauthorized absences (0330 12SEP85-0500 12SEP85, 1300 12SEP85-1500 13SEP85, 0715 16SEP85-0830 16 SEP 85, 0715 27SEP85-0815 27SEP85, 1330 27SEP85-0700 30SEP85, 0715 30SEP85-0800 30SEP85, 1530 08NOV85-0700 09NOV85.
         Charge II: violation of the UCMJ, Article 123a, 11 Specifications: wrongfully and unlawfully make, utter and deliver a certain share draft to the Navy Exchange, Philadelphia, PA (13AUG85, 16AUG85, 17AUG85, 19AUG85, 19AUG85, 20AUG85,21AUG85, 22AUG85, 26AUG85, 29AUG85, 30AUG85 totaling $1.100)
         Charge III: violation of the UCMJ, Article 134, 11 Specifications: dishonorable failure to place and maintain sufficient funds in the Navy Federal Credit Union, Washington DC for payment of a certain check made and uttered to the Navy Exchange, Philadelphia on 13AUG85, 17AUG85, 19AUG85, 19AUG85, 20AUG85, 21AUG85, 22AUG85, 26AUG85, 29AUG85, 30AUG85.
         Findings: to Charge I and 7 specifications thereunder, guilty;
 To Charge II and 11 specifications thereunder, guilty;
To Charge III and 11 specifications thereunder, guilty.
          Sentence: Confinement for 5 months, forfeiture of $426 per month for 5 months, Bad Conduct discharge.
         Command Judge Advocate 860603 (Clemency Recommendation; Petitions): It has been administratively determined that the accused made full and complete restitution to the Naval Exchange on 21 May 86. The military judge made the following recommendation: "I am hereby recommending to the convening authority, that if $715.00 restitution is made to the Navy Exchange here at Philadelphia, by date of the convening authority's action, then my recommendation is then and only t hen, my recommendation is that the convening authority suspend all forfeitures in excess of $426.00 per per month for 2 months." Recommendation: Notwithstanding the recommendation of the military judge and the fact that the accused has made restitution in this case, it is strongly recommended that the sentence be approved as adjudged.
CA 860616: Sentence approved and ordered executed, except for bad conduct discharge. The Brig, Naval Base, Philadelphia is designed as the place of confinement. The undated clemency petition of the accused has been considered in the taking of this action. The recommendations of the military judge have been considered in the taking of this action.
860109:  NJP for violation of UCMJ, Article 92: dereliction in performance of duties on or about 31DEC85.
         Award: Forfeiture of $319 per month for 1 month, restriction and extra duty for 30 days. No indication of appeal in the record.

860310:  Joined NAVSTA Philadelphia, for confinement.

860520:  Psychiatry Eval: Impression: No evidence of any depression or suicide risk. Recommendation: Stress management techniques including increased physical exercise three times weeks. Return to brig. No indications for meds. Follow up if symptom become more severe.

860714:  From confinement; to appellate leave.
870310:  NMCCMR: The findings of guilty and sentence, as approved on review, are affirmed.
880720:  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 880826 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).

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. The applicant’s case was considered under the pertinent standards of equity to determine if any factors in this case warranted clemency. The Board reviewed the applicant’s documentation and found no evidence that the applicant has maintained a clean and sober lifestyle since discharge. Additionally, the applicant did not provide community service verification, employment verification, or educational pursuits. The Board after considering the applicant’s entire application and service record did not find relief warranted.

 The applicant is reminded that he is eligible for a personal appearance hearing provided the application is received within 15 years from the date of discharge. Representation at personal appearance hearing is highly recommended.



Pertinent Regulation/Law (at time of discharge)

 A . The Naval Military Personnel Manual, (NAVPERS 15560A), effective 15 Jun 87 until 13 Dec 89, 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 D.C. 20374-5023    


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