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NAVY | DRB | 2001_Navy | ND01-01183
Original file (ND01-01183.rtf) Auto-classification: Denied


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

ex-ABFAR, USN
Docket No. ND01-01183

Applicant’s Request
The application for discharge review, received 010917, 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 designate a representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 020419. 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 honestly hope that what I am writing here, will aid in your decision to upgrade my discharge. My biggest regret in life, was how I let my whole country down through bad decisions. I owe the USN such a big apology. My story begins around 1986 or 87, the day that I met (L_ T_ I_). I_'s had such a way with words. Myself being so young and naïve to say the least, was easily influenced and swayed by his words. As a matter of fact all my positive views of Navy life aboard the USS DUBUQUE, were somehow changed drastically to negative. Soon I was like in a trance, everything I_'s told me, I began to think was right, and what I thought and everyone else thought began to seem wrong.
I am desiring your forgiveness, and to be restored to active duty, or just a good discharge, so pleased help me. My wife and my three year old son are depending on a better discharge, as I am. My son may even serve the U.S. armed forces one day.
I honestly believe the Navy, was the greatest experience of my life. If I had the mind, that I have now, I would have learned all I could in being the best that I could be, in the U.S.N. The statement that I was asked to write before my discharge, or even my court-martial, the one stating that if they didn't let me out of the Navy, that they would lose more than just one sailor. This to was (L_ T_ I_) idea for me to write the last statement before my discharge. I didn't really want to hurt anyone, so please consider these things, including how young I was then. Thank you very much.

2. My T_W. T_ (Applicant) plea for an upgrade in my discharge seem's more possible than the Navy allowing me to return to active duty. I just must believe the scriptures are true as I've been taught, that all thing's are possible with God. It would be a miracle for me, and my family. So to mention as I was taught from a young age. As I was even taught in school, America is the Land of opportunity. I was always taught that everyone deserves a second chance. My question is then, isn't this still America?
I do not think that I deserve any special treatment. All I want is for the Navy to consider how young and unlearned that I was at that time. I honestly wish that I would erase all of my bad decisions. All I can do is ask each one who reads this letter to consider any mistakes that maybe they've made, and how good it felt when you were either forgiven, or the mistake was forgotten. I never knew how hard life could be with an RE4 discharge hanging over my head. I'm not getting any younger, so please, do all in your power. If I could do it myself, I would, but I can't. I have no choice, I have to depend upon your decision. I am totally at the mercy of the court, sort of say.
I am praying for godspeed here, so have faith with me please, and God be on your side. Sincerely, "T_ W. T_" (applicant), (address)



 Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
Copy of DD Form 214
Rapid Drug Screen Report dated 8-7-01

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
         Inactive: USNR (DEP)     841129 - 850916  COG

 Period of Service Under Review :
Date of Enlistment: 850917               Date of Discharge: 890719

 Length of Service (years, months, days):

         Active: 03 10 03 (Doesn't exclude lost time/confinement/appellate leave.)
         Inactive: None

 Age at Entry: 18                          Years Contracted: 4

Education Level: 12                        AFQT: 36

 Highest Rate: ABFAN

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.0 (2)     Behavior: 3.0 (2)                 OTA: 3.1

 Military Decorations: None

 Unit/Campaign/Service Awards: SSR

 Days of Unauthorized Absence: 41

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 :

861129:  NJP for violation of UCMJ, Article 128 (3 specs): assault on a petty officer, violation of UCMJ, Article 91: disrespectful language.
         Award: Forfeiture of $372.00 per month for 2 months, restriction and extra duty for 30 days, reduction to E-2 (suspended for 6 months). No indication of appeal in the record.
870709:  NJP for violation of UCMJ, Article 92: disobeying a lawful order.
         Award: Restriction and extra duty for 30 days, reduction to E-2. No indication of appeal in the record.
870911:  NJP for violation of UCMJ, Article 86: unauthorized absence from on or about 1234, 30 Aug 87 until on or about 1547, 1 Sep 87.
         Award: 30 days correctional custody (correctional custody is deferred to commence on 13 Sep 87). No indication of appeal in the record.
871211:  Special Court Martial [trial dates 871210 – 871211]
         Charge I: violation of the UCMJ, Article 86, 17 Specifications:
         Specification 1: Unauthorized absence on 1330, 13Nov87 until 1650, 13Nov87.
         Specification 2: failed to go at time prescribed to his appointed place of duty on 1230, 14Nov87.
         Specification 3: failed to go at time prescribed to his appointed place of duty on 1931, 16 Nov 87.
         Specification 4: failed to go at time prescribed to his appointed place of duty on0730, 17Nov87.
         Specification 5: failed to go at time prescribed to his appointed place of duty on 0630, 18Nov87.
         Specification 6: failed to go at time prescribed to his appointed place of duty on 1000, 18Nov87.
         Specification 7: failed to go at time prescribed to his appointed place of duty on 0600, 23Nov87.
         Specification 8: failed to go at time prescribed to his appointed place of duty on 0745, 23Nov87.
         Specification 9: failed to go at time prescribed to his appointed place of duty on 0730, 24Nov87.
         Specification 10: failed to go at time prescribed to his appointed place of duty on 0730, 25Nov87.
         Specification 11: failed to go at time prescribed to his appointed place of duty on 0730, 27Nov87.
         Specification 12: failed to go at time prescribed to his appointed place of duty on 0800, 27Nov87
         Specification 13: failed to go at time prescribed to his appointed place of duty on 0730, 28Nov87.
         Specification 14: failed to go at time prescribed to his appointed place of duty on 0700, 30Nov87.
         Specification 15: failed to go at time prescribed to his appointed place of duty on 0730, 30Nov87.
         Specification 16: failed to go at time prescribed to his appointed place of duty on 0730, 1Dec87.
         Specification 17: failed to go at time prescribed to his appointed place of duty on 0730, 2Dec87.
         Charge II: violation of the UCMJ, Article 91 (4 Specifications):
         Specification 1: on 16Nov87 willfully disobey an order to get a bucket and sponge and clean out padeyes.
         Specification 2: on 23Nov87 willfully disobey an order to get out of his rack.
         Specification 3: on 24Nov87 willfully disobey an order to urinate in a bottle
         Specification 4: on 23Nov87 assault a second class petty officer.
         Charge III: violation of the UCMJ, Article 134, specification - on 2Nov87 communicate a threat to injure a second class officer.
         Findings:
Charge I and specifications 1,2,4, 6,7,9,10,11,13,14,15, 16, and 17 thereunder, guilty; specifications 3,5,8,12 withdrawn by the Government.
          Charge II and specifications 1,2, and 3 thereunder, guilty; specifications 4 withdrawn by the Government.
         Charge III - withdrawn by the Government
         Sentence: Confinement for 85 days, forfeiture of $400 per month for 3 months, reduction to E-1, Bad Conduct discharge.
         CA 880126: Sentence approved and ordered executed, except for bad conduct discharge and that part of the sentence extending to confinement is excess of 45 days is suspended for a period of one year from date of convening authority's action.
         SA 880401: Bad conduct discharge executed.

871211:  To confinement.

880122:  From confinement to full duty.
880831:  Transferred to NAVAPLVACT WASH DC for record purpose only.

880930:  To appellate leave.

 880217:  Judge Advocate Review: Sentence lawful and the court-martial had jurisdiction over both accused and each specification regarding which a guilty finding stands approved. Convening authority is directed to cause the accused to be so notified and necessary service record entries made.
880406:  Action by the Officer Exercising General Court-Martial Jurisdiction: The findings of guilty and sentence, as approved on review and discharge ordered executed.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 890719 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).

Issues 1 and 2. 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.

The applicant’s discharge characterization accurately reflects his service to his country. The discharge was proper and equitable. 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 based on 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 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 relief, 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 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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