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NAVY | DRB | 2001_Navy | ND01-00143
Original file (ND01-00143.rtf) Auto-classification: Denied


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

ex-MMFR, USN
Docket No. ND01-00143

Applicant’s Request
The application for discharge review, received 001115, 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 010510. 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. I'm sending this application to you; I sent it to the wrong office again. Mr. D_ L_ K_ from the board of corrections advised of this. I've asked for this and wrote letter after letter in this matter of having my discharged up graded to a General under honorable conditions, but I always get the same old run around. All I've got is my past military record, I've never received any documents what so ever. I'm requesting for Medical reasons, So that I can go to the Val hospital. I would also like a copy of my military record. Both Jag. Lawyers said I would receive a copy of every thing! I received nothing!! I realize what I done was wrong, but I was trying to get my children back. When you lose everything you've work for, all because a Captain wants to make an example of you, and senior’s chief and officers go along with it, it really doesn't matter. That was the frame of mind was in at the time. You know as well as I DO, once you get a black mark it forever. Thank you for listening to my request.

 Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
Copy of DD Form 214 (Member 1)

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: USN                        660225 - 690718  HON
 USN                       690719 - 741217  HON
          Inactive: USNR            630720 - 660224  COG

 Period of Service Under Review :
Date of Enlistment: 741218               Date of Discharge: 890630

 Length of Service (years, months, days):

         Active: 14 06 13 (Does not exclude lost time.)
         Inactive: None

 Age at Entry: 27                          Years Contracted: 4

 Education Level: 9                         AFQT: Unknown

 Highest Rate: MM1

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: NMF                           Behavior: NMF             OTA: NMF

 Military Decorations: None

 Unit/Campaign/Service Awards: GCM, NDSM, AFEM

Days of Unauthorized Absence: 4782

 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 :

770711:  Applicant to unauthorized absence 0700, 11Jul77.

770727:  Applicant from unauthorized absence 2030, 27Jul77 (16 days/ surrendered). No disciplinary action taken by this command.
771026:  Special Court Martial
         Charge I: violation of the UCMJ, Article 86, (4 specifications)
         Specification 1: Unauthorized absence 2001, 5Mar77 to 0930, 30Mar77 (25 days/surrendered).
 Specification 2: Unauthorized absence 0001, 2Apr77 to 0830, 25Apr77 (23 days/surrendered).
Specification 3: Unauthorized absence 0501, 16May77 to 2245, 9Jun77 (24 days/surrendered).
Specification 4: Unauthorized absence 0645, 12Jun77 to 1125, 27Jul77 (45 days/surrendered).
          Charge II: violation of the UCMJ, Article 92:
         Specification 1: Failure to obey lawful order dated 30Mar77
         Findings: to Charge I and II and specifications thereunder, guilty.
         Sentence: CHL for 4 months, reduction to MM2.
         CA 771201: Only so much of the sentence as provides for reduction to MM2 and CHL for 2 months is approved and ordered executed.

780719:  Applicant missed ship's movement.

780803:  Applicant declared a deserter.

790515:  Applicant arrested by civilian authorities in Kitty Hawk, NC and charged with driving on suspended driver's license and driving while intoxicated. Confined in Manteo City, Manteo, NC in lieu of posting $800.00 bond.

790608:  Civilian conviction of driving on suspended driver's license and driving while intoxicated.
         Sentence: One year in Gates County Prison Unit.

791214:  Applicant served 8 months and released to AWOL Appr Team at 0755, 14Dec79.

800126:  Applicant declared a deserter.

880921:  Special Court Martial
         Charge I: violation of the UCMJ, Article 86, (2 specifications):
         Specification 1: Unauthorized absence 0725, 4Jul78 to 0755, 14Dec79 (528 days/apprehended).
         Specification 2: Unauthorized absence from 0700, 26Dec79 to 1541, 18Jul88 (3137 days/surrendered).
         Findings: to Charge I and specifications 1 and 2 thereunder, guilty.
         Sentence: CHL for 85 days, forfeiture of $440 per month for 3 months, reduction to MMFR, Bad Conduct discharge.
         CA 881026: Sentence approved and ordered executed, except for bad conduct discharge and confinement in excess of 45 days is suspended for a period of 12 months.

880921:  Applicant to confinement.

881101:  Applicant from confinement.

 000000:  NC&PB clemency not granted; restoration denied.

 890209:  NMCCMR: The findings of guilty and sentence, as approved on review, are affirmed.
890630:  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 890630 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. The applicant states he is requesting a medical reason so he can go to the VA hospital. The Board does not have the authority to change the reason for discharge from a non-medical reason to a medical reason. The applicant received a Bad Conduct Discharge at court martial, for violation of UCMJ, Article 86, unauthorized absence for a total of 3665 days (10 years and 15 days), then was discharged in absentia. The NDRB is not authorized to overturn a court martial conviction but can change a discharge based on clemency. The applicant did not provide any documentation for the Board to consider, in order to grant relief based on clemency. Therefore, relief is denied.

 The following is provided for the benefit of the applicant. Normally, to permit relief, an error or injustice must have existed during the period of enlistment in question. No such error or injustice occurred during the applicant’s enlistment. Additionally, 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 any of these documents. 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.

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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