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NAVY | DRB | 2001_Navy | ND01-00499
Original file (ND01-00499.rtf) Auto-classification: Denied


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

ex-FR, USN
Docket No. ND01-00499

Applicant’s Request
The application for discharge review, received 010306, requested that the characterization of service on the discharge be changed to Honorable. 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 010817. 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. At the time I went into the navy, I was very ambisious about being in the service. I went through boot camp with no problems, I went through ntc school 6wks, then I went home for two weeks where I met a woman who I got very involved with, because I was young at the time. I did not realize the consequences of my actions. The navy warned me that it would be very hard for a relationship, since I did not know what I was doing, I went ahead and got married, which I should not have done. I was irresponsible at the time, because it made me go U.A. a couple times. I should not have gotten married at the time. I have since grown up more and became more responsible, I have since been working and able to work, at this time I am trying to go back into the national guard and would respectfully request permission to get upgraded on my discharge.

 Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
None

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: USN                        None
         Inactive: USNR (DEP)     839425 - 840116  COG

 Period of Service Under Review :
Date of Enlistment: 840117               Date of Discharge: 890203

 Length of Service (years, months, days):

         Active: 05 00 18
         Inactive: None

 Age at Entry: 19                          Years Contracted: 4

Education Level: 12                        AFQT: 42

 Highest Rate: FR

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.20 (1)    Behavior: 3.20 (1)                OTA: NOB

 Military Decorations: None

 Unit/Campaign/Service Awards: None

Days of Unauthorized Absence: 1429

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 :

840706:  To UA at 0700, 6 July, 1984, from USS DAHLGREN (DDG 43).

 840717:  From UA at 1600, 17 July, 1984 (11days). Surrendered onboard USS DAHLGREN (DDG 43).

840724:  To UA at 0700, 24 July, 1984, from USS DAHLGREN (DDG 43).

840820:  From UA at 2025, 20 August, 1984. Surrendered onboard USS DAHLGREN (DDG 43).
840822:  NJP for violation of UCMJ, Article 86: Did onboard USS DAHLGREN (DDG-43) absent from appointed place of duty from 840724-840820 [27days/S].
         Award: Correctional Custody for 30 days. No indication of appeal in the record.
840927:  To UA at 0700, 27 September, 1984, from USS DAHLGREN (DDG 43).
841026:  Report of Declaration of Deserter (NAVPERS 1600-3). Applicant declared a deserter on 841026 having been an unauthorized absentee since 0700, 840927 from USS DAHLGREN (DDG-43) at Philadelphia, PA.

860323:  Apprehended by civil authorities 1300, 860323 at ST. Petersburg FL. Apprehended for shoplifting, no civil charges pending. Returned to military control at NACU Jacksonville FL 860324. Transferred to USS DAHLGREN (DDG-43) 860325 (543days/A).
860331:  To UA at 0715, 31 March, 1986, from USS DAHLGREN (DDG 43).

 860606:  Apprehended by civil authorities 2130 860606 Pinellas County, FL. Charges: Violation of probation on grand theft and obstructing an officer. (time served). Returned to military control DIP Washington DC 1015 880108. Transferred to NAS Jacksonville, FL for dispact.

 860726:  Report of Declaration of Deserter (NAVPERS 1600-3). Applicant declared a deserter on 860501 having been an unauthorized absentee since 0715, 860331 from USS DAHLGREN (DDG-43).

880108:  Report of Return of Deserter. Applicant apprehended by civil authorities on 870606 (2130) at ST. Petersburg, FL. Returned to military control 880108 (1015). Orig retained custody pending transfer to NAS Jacksonville, FL TEMDU for disciplinary/dispo.

880229:  Special Court Martial
         Charge I: violation of the UCMJ, Article 86, (0) Specifications.
         Specification 1: Desertion from on or about 860331 until apprehended on or about 880108 (648days/A).
         Findings: to Charge I and specifications 1 thereunder, guilty, except for the words "and with intent to remain away therefrom permanently"; and "in desertion." Of the excepted words, Not Guilty, of the Charge, Not Guilty but Guilty of a violation of Article 86, UCMJ .
         Sentence: CHL for 6 months, forfeiture of $447.00 pay per month for 6 months, Bad Conduct discharge.
         CA 880426: Sentence approved and ordered executed, except for bad conduct discharge. In accordance with the provision of the pretrial agreement, execution of that portion of the sentence extending to confinement in excess of 5 months shall be suspended for a period of 6 months from the date the sentence was adjudged, at which time, unless sooner vacated, the suspended portion of the confinement shall be automatically remitted without further action.
        
880229:  Joined the Brig, Naval Station, Charleston, South Carolina, for confinement.

880310:  Applicant waived clemency review [Extracted from NC&PB computer system].

880512:  From confinement; to appellate leave.
880916:  NMCCMR: The findings of guilty and sentence, as approved on review, are affirmed.
890105:  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 890203 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 trying to get back into the National Guard and request permission to have his discharge upgraded. Relevant and material facts stated in a court martial specification are presumed to be established facts by the NDRB. A discharge or dismissal adjudged by a court martial, tried under the UCMJ, can only be changed/upgraded for the purpose of clemency. 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 grant clemency and 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. 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 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 " 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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