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NAVY | DRB | 2001_Navy | ND01-00724
Original file (ND01-00724.rtf) Auto-classification: Denied


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

ex-RMSR, USN
Docket No. ND01-00724

Applicant’s Request
The application for discharge review, received 010430, requested that the characterization of service on the discharge be changed to honorable. The applicant requested a documentary record discharge review. The applicant listed Disabled American Veterans as the representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 011127. 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 (verbatim)

 1. To whom it may concern,

Being born in North Philadelphia was to say the least a challenge within itself. High crime rate and even higher drug one. Crack infested streets and a low moral climate where obstacles in which I had endure on a daily basis. But deep in my heart even as I grew, I new there had to be a better way of life. As I went on to school the realization that most of the problems I encountered were as I now see, Self-Inflicting. Products of a misguided childhood? After graduating from down town industrial and Agricultural School it became painfully obvious the time had come for me to decide what to do with my I Life. Since both my elder brothers Anthony and Joseph had already joined the Army and the Air force Respectively, the Navy was as clear as a choice I could make. The Gulf War was well into full-blown Combat. Enlisting in the early entry program allowed me to view and dissever all the different possibilities, being able to represent my country was as good an idea as any. My boot camp was in San Diego, Ca- 3000 Miles away from home, I flew with the chance to make something of my life or die trying. While in boot camp I achieved many honors as well as some set backs, good times and bad. But again most of the bad things I endured were a direct product of my own actions in which I take full Responsibility for. My duties while enlisted were radioman, in charge of communications interested with a Top-secret clearance as well as damage control. All of my supervisors were pretty cool. While in service I Obtained the rank of RCPO (RECRUIT CHIEF PETTY OFFICER) twice, while also earning the national Service defense medal. Unfortunately a knee injury prematurely stops me from going on to my next duty Station (the USS LONG BEACH 9). While in temporary placement I allowed my idle time to get the best of me. Getting involved with the wrong people and doing wrong things soon thereafter my number was called For an urinalyses in which I subsequently failed Seemingly changing my life before it really began. I was informed by my company petty officer of the results the urinalysis and ordered over to the Diplomacy barracks for preparation of a general court martial. My military attorney which was provided by the base informed me if I pleaded guilty to conduct unbecoming a U.S soldier in two years my discharge would be upgraded automatically. That never happened and 8 years later the affects of my decision that day still haunts me. It was also stated that all my benefits as an American Veteran would not be affected. This was not the Case. I am currently married with five children and the affects of the Bad Conduct discharge in which I Received is heeding not only myself but my family as well. I implore to whom it may concern to look at the crime and decide the punishment has served it's purpose, and my life as well as my honor be restored, God Bless America. Sincerely,
2. (DAV's Issue)

After a review of the Former Service Member (FSM) DD Form 293 Application for the Review of Discharge or Dismissal from the Armed Forces of the United States and all of the evidence assembled for review, we continue to note the contentions as set forth on the application by the appellant of an upgrade of his current Bad Conduct Discharge to that of Honorable. The record reflect the FSM served in the United States Navy from August 27, 1990 to July 24, 1992, at which time he was discharged with a Bad Conduct Discharge by reason of conviction by special court martial. The FSM requests equitable relief in the manner as noted above, he believes the discharge currently held is unfair, and not commensurate with the nature of the offense. As the representative this service requests consideration be given to equitable relief in the form of a General Discharge, Under Honorable Conditions, as the current material on file reflect that the FSM accepts responsibility for his wrong doing, but was given some bad advice and/ or counsel during his punishment phase, as noted on his 22 page submittal. On which it is also noted that the current discharge has kept the FSM from obtaining gainful employment in the civilian sector. This service is of the belief that it is the intent of the Navy to punish service members for offenses incurred on active duty, but that it is not the intent of the Navy for FSM's to suffer this punishment for the rest of their lives rendering it impossible for said FSM to maintain a decent life. Therefore we ask for consideration of equitable relief. We ask the Board's careful and sympathetic consideration of all the evidence of record used in rendering a fair and impartial decision. These issues do not supersede any issue previously submitted by the applicant.

 Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
Copy of Transcript
Copy of College Training Courses Listing
Supplemental Information Package (12 pgs)

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: USN               None
         Inactive: USNR (DEP)     900112 - 900826  COG

 Period of Service Under Review :
Date of Enlistment: 900827               Date of Discharge: 920724

 Length of Service (years, months, days):

         Active: 01 10 29
         Inactive: None

 Age at Entry: 19                          Years Contracted: 4

Education Level: 12                        AFQT: 38

 Highest Rate: RMSA

 Final Enlisted Performance Evaluation Averages (number of marks):

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

 Military Decorations: None

 Unit/Campaign/Service Awards: NDSM

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 :

901010:  NJP for violation of UCMJ, Article 80: Attempt to persuade Company 234 Recruit Yeoman to issue a phone call walking chit for $10.00 U.S. Currency on 901010, violation of UCMJ Article 92: (2 Specs), Spec 1: Failed to obey a lawful written order on 901002, Spec 2: Failed to obey a lawful written order on 901003.
         Award: Forfeiture of $150.00 per month for 1 month. No indication of appeal in the record.

910307:  Officer in Charge NJP for violation of UCMJ, Article 121: Commit larceny on 910304, violation of UCMJ Article 86: Absent from his organization from 1430, 910301 until1000, 910305.
         Award: Forfeiture of $197.00 per month for 1 month, restriction and extra duty for 14 days. No indication of appeal in the record.
910307:  Retention Warning: Advised of deficiency (Violation of Article 121: Larceny, Article 92: Failure to obey a lawful order to report to the Transfer Coordinator for check-out from RM "A" to holding Co. for medical hold; Article 86: Unauthorized absence for a period of about 5 days), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

910618:  Pretrial restraint from 910618 to 910703.

910703:  Pretrial restraint from 910711 to 910716.

910716:  Special Court Martial [trial dates 910703 – 910716]
         Charge I : violation of the UCMJ, Article 86, (10) Specifications .
         Specification 1 : Did on 910419, fail to go at the time prescribed to his appointed place of duty, to wit: 1515 Service School Command Discipline Company Muster, Naval Training Center, San Diego, California; Specification 2 : Did on 910421, fail to go at the time prescribed to his appointed place of duty, to wit: 2145 Service School Command Discipline Company Muster, Naval Training Center, San Diego, California; Specification 3 : Did on 910502, fail to go at the time prescribed to his appointed place of duty, to wit: 1115, 1500 and 2150 Service School Command Discipline Company Muster, Naval Training Center, San Diego, California; Specification 4 : Did on 910503, fail to go at the time prescribed to his appointed place of duty, to wit: 0700, 1115, 1500 Service School Command Discipline Company Muster, Naval Training Center, San Diego, California; Specification 5 : Did on 910511, fail to go at the time prescribed to his appointed place of duty, to wit: 1700 Service School Command Discipline Company Muster, Naval Training Center, San Diego, California; Specification 6 : Did on 910513, fail to go at the time prescribed to his appointed place of duty, to wit: 1445 Service School Command Discipline Company Muster, Naval Training Center, San Diego, California; Specification 7 : Absent from organization from 1300-2000, 910517; Specification 8 : Did on 910520, fail to go at the time prescribed to his appointed place of duty, to wit: 1700 and 2000 Service School Command Discipline Company Muster, Naval Training Center, San Diego, California; Specification 9 : Did on 910528, fail to go at the time prescribed to his appointed place of duty, to wit: 0700 Service School Command Discipline Company Muster, Naval Training Center, San Diego, California; Specification 10 : Did on 910617, go from appointed place of duty, to wit: Building 383, Service School Command Discipline Company Muster, Naval Training Center, San Diego, California. Charge II : violation of the UCMJ, Article 112a: Wrongful use of marijuana on 910410. Charge III : violation of the UCMJ, Article 121: Did, on 910419, steal a California Driver's License, a Federal Banking ATM Card, a wallet, of some value, and six dollars, U.S. Currency, the property of Ms K___ F. M____. Charge IV : violation of the UCMJ, Article 134: Did, on 910429, wrongfully communicate to RMSR R___ L. F____, U.S. Navy, a threat to injure by stating to him , "I'm gonna beat your ass tonight. Don't go to sleep," or words to that effect. Additional Charge : violation of the UCMJ, Article 112a: Wrongful use of cocaine on 910621.
         Findings: to Charge I and specifications 1, 2, 3, 4 and 7 thereunder, not guilty, to specification 5, 6, 9 and 10 thereunder, guilty, to specification 8 thereunder, guilty, excepting the word and figures " and 2000," of the excepted words: Not Guilty, of the Specification as excepted: Guilty. To Charge II and the specification thereunder, guilty, excepting from the specification the words and figures "10 April" and substituting thereof the words and figures "20 March;" of the excepted words: Not Guilty, of the substituted words: Guilty of the specification thereunder andf the Charge: Guilty . To Charge III and the specification thereunder, not guilty. To Charge IV and the specification thereunder, not guilty. To Additional Charge and the specification thereunder, guilty.
         Sentence: Confinement for 75 days, forfeiture of $300.00 per month for 3 months, reduction to E-1, Bad Conduct discharge.
         CA 911009: Sentence approved and except for that part of the sentence extending to a bad conduct discharge will be executed. That part of the sentence adjudging confinement in excess of 60 days is suspended for 12 months from the date of trial at which time unless the suspension is sooner vacated, the suspended part of the sentence will be remitted without further action.
        
910716:  Joined U.S. Naval Consolidated Brig, Naval Air Station, Miramar, San Diego, California, for confinement.

910718:  Applicant waived clemency review [Extracted from NC&PB computer system].
911017:  From confinement; to appellate leave.
920110:  NMCCMR: The findings of guilty and sentence, as approved on review, are affirmed.
920724:  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 920724 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. In response to the applicant’s issue, 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 (C, Part IV). The applicant’s case was considered under the pertinent standards of equity to determine if any factors in this particular case merited clemency. The NDRB found the applicant’s service record devoid of any mitigating or extenuating factors sufficient to offset the seriousness of the offenses for which the discharge was awarded. Relief denied.

Issue 2. The Board has no authority to upgrade a discharge for the sole purpose of enhancing employment opportunities as requested in the issue. The applicant’s discharge characterization accurately reflects his service to his country. The discharge was proper and equitable. 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 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. Naval Military Personnel Manual, (NAVPERS 15560C), effective 15 Aug 91 until 04 Mar 93, 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 DC 20374-5023      


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