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NAVY | DRB | 2001_Navy | ND01-00587
Original file (ND01-00587.rtf) Auto-classification: Denied


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



ex-FR, USN
Docket No. ND01-00587

Applicant’s Request
The application for discharge review, received 010329, requested that the characterization of service on the discharge be changed to honorable or general/under honorable conditions and the reason for the discharge be changed. The applicant requested a personal appearance hearing discharge review before the Board in the Washington National Capital Region. The applicant listed Civilian Counsel as the representative on the DD Form 293.

Decision

A personal appearance discharge review hearing was conducted in Washington, D.C. on 020314. The applicant did not appear in person, but elected by power of attorney to be represented by counsel at the hearing. 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 for 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. Due to passage of time, good citizenship sign discharge, a favorable attitude to the U.S. Navy, and service to USS LING Navy Submarine Memorial for over 20 yrs.

 Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
Statement from Applicant
Copy of DD Form 214
Copy of SPMCO (3pgs)
Reference Letter from D____ B___ dtd March 24, 2001
Thank You Letter from W____ & L___D____
Thank You Letter from M___ R___ Rudge Towing & Recovery dtd September 20, 2000
Thank You Letter from R____ R____ Custom Furniture & Cabinetry dtd June 6, 2000
Copy of U.S. Naval Institute Associate Member Certificate dtd March 1, 1999
Copy of Automobile Advanced Engine Performance Certificate dtd June 30, 1997
Copy of Certificate of Completion (New Jersey Inspector and State Specific Information Course) dtd April 23, 1999
Copy of Certificate of Recognition (Certified Emission Repair Technician)
Copy of Certificate of Appreciation (Fire Safety and Awareness Program)
Copy of Certificate of Competence (Master Automobile Technician)
Copy of Attendance Certificate from Citizen Police Academy dtd November 17, 1997
Copy of Private Inspection Facility License dtd May 26, 2000
Copy of Emission Repair Facility Licence
Thank You Letter from V___ L____
Letter of Appreciation from D____ C____
Enlistment Classification Record
Brochure from New Jersey Naval Museum (5pgs)
Navy Occupational/Training and Award History NAVPERS 1070/604
Enlisted Performance Record
Cover Letter from P____ D. C____, Attorney at Law
Supplemental Information from Applicant
Faxed copy of applicant’s power of attorney waiving his appearance. Dtd 020314

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: USN                        None
         Inactive: USNR (DEP)     810727 - 810826  COG

 Period of Service Under Review :
Date of Enlistment: 810827               Date of Discharge: 860331

 Length of Service (years, months, days):

         Active: 02 05 25
         Inactive: None

 Age at Entry: 18                          Years Contracted: 6

 Education Level: 12                        AFQT: 38

 Highest Rate: FN

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.50 (2)    Behavior: 3.30 (2)                OTA: 3.40

 Military Decorations: None

 Unit/Campaign/Service Awards: None

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 :

831206:  Special Court Martial [trial date 831206]
         Charge I: violation of the UCMJ, Article 121: Steal 1 Rochester Quadra Jet Carburetor, 2 Chevrolet Pick Up Truck Doors, 1 Realistic Brand Forty Channel Citizen's Band Radio, 1 Craig Power Booster between 8304 and 8305.
         Findings: to Charge I and specification 1 thereunder, guilty.
         Sentence: CHL for 3 months, forfeiture of $382.00 per month for 3 months, reduction to E-1, Bad Conduct discharge.
         CA 831227: Sentence approved, but the execution of that portion thereof adjudging Forfeiture of pay exceeding $286.00 pay per month for 3 months is suspended for a period of 6 months, at which time, unless the suspension is sooner vacated, the suspended portion of the sentence will be remitted without further action.
        
831206:  Joined Naval Brig, Seattle, WA, for confinement.

840219:  From confinement; to appellate leave.

 840301:  NC&PB clemency not granted; restoration denied.

 840417:  NMCCMR: The findings of guilty and sentence, as approved on review, are affirmed.
840921:  COMA: Request for appeal denied.

 860115:  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 860331 with a bad conduct due to conviction by a 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).

 The applicant’s issue states: “Due to passage of time, good citizenship sign discharge, a favorable attitude to the U.S. Navy, and service to USS LING Navy Submarine Memorial for over 20 yrs.” 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 special court martial conviction, the action of the NDRB is restricted to upgrades based on clemency. The applicant's counsel’s testimony as well as his post service documentation were considered under the pertinent standards of equity to determine if any factors in this particular case merited clemency. While the applicant’s efforts with the New Jersey Naval Museum are commendable, the Board did not find the applicant’s post service documentation significant enough to warrant clemency. Notably absent was verifiable documentation demonstrating a clean police record and significant volunteer community service. Relief based on clemency is not warranted.

The NDRB, under its responsibility to examine the propriety and equity of an applicant's discharge, will change the reason for discharge if such a change is warranted. The summary of service clearly documents that conviction by special court martial was the reason the applicant was discharged. No other Narrative Reason for Separation could more clearly describe why the applicant was discharged. To change the Narrative Reason Separation would be inappropriate. Relief is not warranted.

Pertinent Regulation/Law (at time of discharge)

 A. Naval Military Personnel Manual, (NAVPERS 15560), Change 1/83, effective
28 Apr 83 until 14 Jun 87, 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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