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NAVY | DRB | 2001_Navy | ND01-00121
Original file (ND01-00121.rtf) Auto-classification: Denied


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

ex-SR, USN
Docket No. ND01-00121

Applicant’s Request
The application for discharge review, received 001102, 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 listed the American Legion as the representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 011018. 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 10 USC 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, undated
Character reference dated June 28, 2000
Letter from applicant
Character reference, undated
Letters from House of Representatives dated April 21, 1988 and November 4, 1987
Character reference dated July 7, 2000

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
         Inactive: USNR (DEP)     870127 - 870217  COG

 Period of Service Under Review :
Date of Enlistment: 870218               Date of Discharge: 890501

 Length of Service (years, months, days):

         Active: 02 02 14
         Inactive: None

 Age at Entry: 25                          Years Contracted: 4

 Education Level: 12                        AFQT: 88

 Highest Rate: SR

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: NMF                  Behavior: NMF             OTA: NMF

 Military Decorations: None

 Unit/Campaign/Service Awards: None

 Days of Unauthorized Absence: 168

 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 :
870602:  Applicant declared a deserter.

 870710:  Summary Court-Martial.
         Charge I: violation of the UCMJ, Article 86 (3 specs):
         Specification 1: Unauthorized absence from 0600, 26Apr87 to 0720, 28Apr87 (2 days/surrendered).
         Specification 2: Unauthorized absence from 0500, 4May87 to 2244, 15Jul87 (72 days/apprehended).
         Specification 3: Fail to go to appointed place of duty on 26Apr87.
         Charge II: violation of the UCMJ, Article 134:
         Specification: Incapacitated for the proper performance of duty on 24Apr87.
         Finding: to Charge I and II and the specifications thereunder, guilty.
         Sentence: Forfeiture of $438.00, confinement for 1 month.
         CA action 870807: Sentence approved and ordered executed.

870710:  Applicant to confinement.

870803:  Applicant released from confinement and returned to full duty.

870903:  NJP for violation of UCMJ, Article 112: Found drunk while on duty on 21Aug87, violation of UCMJ, Article 92: Disobey a lawful order on 21Aug87, violation of UCMJ, Article 112A: Wrongfully use a controlled substance between 1Aug and 11Aug87.
         Award: Forfeiture of $325 per month for 2 months, restriction and extra duty for 45 days. No indication of appeal in the record.
871028:  Drug and Alcohol Abuse Report: Marijuana abuse, less than monthly (August 1987), ashore of duty. Inspection urinalysis August 1987. Medical officer found the applicant not dependent and recommended separate. Commanding officer recommended separate. Comments: SNM is a poor performer with no potential for continued naval service. MBR had a summary court martial in Jul 87 for numerous UAs and a fitness for duty, awarded 30 days brig time. MBR had a positive urinalysis Aug 87 and CO's NJP Sep 87. MBR was screened by Medical Officer and found to be not dependent. MBR is being processed for separation in accordance with reference OPNAVINST 5350.4A.
871029:  NJP for violation of UCMJ, Article 86: Unauthorized absence from 0700, 19Oct87 to 0700, 20Oct87 (1 day), violation of UCMJ, Article 91: Willfully disobey a lawful order issued by his superior petty officer on 0600, 0645, 0731,and 0733, 14Oct87, violation of UCMJ, Article 92: Fail to obey a lawful written order on 1600, 21Oct87.
         Award: Forfeiture of $100 per month for 1 month, restriction and extra duty for 30 days. No indication of appeal in the record.
880104:  Applicant declared a deserter.

880407:  Applicant to pre-trial confinement.

880511:  Applicant release from pre-trial confinement.

 880511:  Special Court Martial:
         Charge I: violation of the UCMJ, Article 86:
         Specification: Unauthorized absence from 0700, 2Dec87 to 1855, 28Feb88 (88 days/surrendered).
         Specification 2: Unauthorized absence from 1630, 1Apr88 to 1630, 6Apr88 (5 days/surrendered).
         Charge II: violation of the UCMJ, Article 112A:
         Specification: Wrongful use of marijuana between 6Nov87 to 16Nov87.
         Charge III: violation of the UCMJ, Article 134:
         Specification: Breaking restriction on 1Apr88.
         Findings: to Charge I, II and III and specifications thereunder, guilty.
         Sentence: CHL for 3 months, forfeiture of $250 per month for 4 months.
         CA 880825: Sentence approved and except for that portion extending to a bad conduct discharge will be executed, but execution of that part of the sentence adjudging confinement in excess of 60 days is suspended for a period of 6 months from the date of the trial at which time unless suspension is sooner vacated, the suspended part of the sentence will be remitted without further action.

Record of trial missing.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 890501 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).

 Issue 1. Relevant and material facts stated in a court-martial specification are presumed by the NDRB to be established facts. There is no law, or regulation, which provides that an unfavorable discharge may be upgraded based solely on the passage of time, or good conduct in civilian life, subsequent to leaving the service. However, the NDRB is authorized to consider outstanding post-service factors in the recharacterization of a discharge, to the extent that such matters provide a basis for a more thorough understanding of the applicant’s performance and conduct during the period of service under review. Verifiable proof of any post-service accomplishments must be provided in order for the applicant to claim post-service conduct and behavior as a reason to upgrade a less than Honorable discharge. Evidence of continuing educational pursuits, an employment record, documentation of community service, certification of non-involvement with civil authorities and proof of his not using drugs, are examples of verifiable documents that should have been provided to receive consideration for clemency, based on post-service conduct. The applicant did not provide sufficient documentation to warrant an upgrade to his discharge. He is reminded that he remains eligible for a personal appearance hearing, provided an application is received, at the NDRB, within 15 years from the date of his discharge. The applicant can provide additional documentation to support any claims of post-service accomplishments at that time. Legal representation at a personal appearance hearing is highly recommended but not required. Relief denied.

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 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 " afls10.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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