Search Decisions

Decision Text

NAVY | DRB | 2002_Navy | ND02-00105
Original file (ND02-00105.rtf) Auto-classification: Denied


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


ex-ENFR, USN
Docket No. ND02-00105

Applicant’s Request
The application for discharge review, received 011017, requested that the characterization of service on the discharge be changed to honorable or general/under honorable conditions. The applicant requested a documentary record discharge review. The applicant did not list any representative on the DD Form 293. Subsequent to the application, the applicant obtained representation by the American Legion.


Decision

A documentary discharge review was conducted in Washington, D.C. on 020715. 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 5815-010 (formerly 3640420).
The NDRB did note an administrative error on the original DD Form 214. Block 3, Social Security No. should read: “249 49 4771” vice “249 49 4656”, Block 25, Separation Authority should read: “NAVMILPERSMAN, Article 5815-010” vice “MILPERSMAN 3640420 AND SPCMSONO 99-1579 dtd 99DEC08”, Block 28, Narrative Reason for Separation should read: “Convicted by special court martial” vice “COURT-MARTIAL CONVICTION”. The original DD Form 214 should be corrected or reissued as appropriate.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION


Issues, as submitted

1. (Equity Issue) Pursuant to 10 USC 874 (b) (UCMJ, Article 74) and in accordance with SECNAVINST 5420.174C, enclosure (1), paragraphs 2.24 and 9.3, this former member requests the Board’s clemency relief with up-grade of his characterization of service to under honorable conditions on the basis of his post-service conduct.

Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
Statement from applicant
Copy of social security card
 One page from applicant's service record

Copy of DD Form 214

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
          Inactive: USNR (DEP)     960306 - 960922  COG
Period of Service Under Review :
Date of Enlistment: 960923               Date of Discharge: 991208

 Length of Service (years, months, days):
         Active: 03 02 16
         Inactive: None
Age at Entry: 19                          Years Contracted: 4

 Education Level: 12                        AFQT: 32
Highest Rate: ENFN

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: NMF*                 Behavior: NMF             OTA: NMF
Military Decorations: None

 Unit/Campaign/Service Awards: None

Days of Unauthorized Absence: 217

 * No Marks Found
Character, Narrative Reason, and Authority of Discharge (at time of issuance):

BAD CONDUCT/Convicted by special court martial, authority: NAVMILPERSMAN, Article 5815-010 (formerly 3640420).

 Chronological Listing of Significant Service Events :

980101:  Applicant declared a deserter on 980101 having been an unauthorized absentee since 0630, 1Dec97 from USS THEODORE ROOSEVELT (CVN 71).
980708:  Report of Return of Deserter. Applicant surrendered 1635, 6Jul98 at USS THEODORE ROOSEVELT (CVN 71) (217 days/surrendered).

 980915:  Special Court Martial
          Charge I: violation of the UCMJ, Article 86:
          Specification: Unauthorized absence 0630, 1Dec97 – 1635, 6Jul98 (217 days/surrendered).
          Findings: to Charge I and specification thereunder, guilty.
         Sentence: CHL for 21 days, Bad Conduct discharge.
          CA 990213: Sentence approved and ordered executed, except for bad conduct discharge.

981002:  Applicant released from confinement.
990203:  Attorney's request for clemency to disapprove or suspend the BCD.

 990908:  NMCCCA: The findings of guilty and sentence, as approved on review,
         are affirmed.

991208:  SSPCMO: Article 71c, UCMJ, having been complied with, Bad Conduct discharge will be executed.            

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 991208 with bad conduct due to convicted 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).
Issue 1. 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. The Board has no authority to upgrade a discharge for the sole purpose of enhancing employment opportunities as requested in the issue. 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, 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 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 15560C), Change 22, effective 15 Dec 98 to Present, Article 5815-010 (formerly 3640420), Executing a Dishonorable or Bad Conduct Discharge.

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 DC 20374-5023      

Similar Decisions

  • NAVY | DRB | 2002_Navy | ND02-00484

    Original file (ND02-00484.rtf) Auto-classification: Denied

    The Naval Discharge Review Board (NDRB) also advised that the board first conducts a documentary review prior to any personal appearance hearing. CA action 911030: Sentence approved and ordered executed.911116: Released from confinement and returned to full duty. Applicant declared a deserter on 920207 having been an unauthorized absentee since 0545, 920107 from USS THEODORE ROOSEVELT (CVN-71).920424: Report of Return of Deserter.

  • NAVY | DRB | 2006_Navy | ND0600429

    Original file (ND0600429.rtf) Auto-classification: Denied

    PART I - APPLICANT’S ISSUES AND DOCUMENTATION Issues, as stated Applicant’s issues, as stated on the application: “ Respectfully request change of bad conduct discharge into an honorable discharge, also please change my separation code:jjd/901 and re-entry code of re4. The Manual for courts-martial authorizes the award of a punitive discharge if adjudged as part of the sentence upon conviction by a special or general court martial for violations of the UCMJ, Articles 86 (Unauthorized...

  • NAVY | DRB | 2003_Navy | ND03-00211

    Original file (ND03-00211.rtf) Auto-classification: Denied

    The Applicant’s discharge package was not available to the Board for review. At this time, the applicant has not provided any documentation for the Board to consider. 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:

  • NAVY | DRB | 1999_Navy | ND99-00518

    Original file (ND99-00518.rtf) Auto-classification: Denied

    ND99-00518 Applicant’s Request The application for discharge review, received 990302, requested that the characterization of service on the discharge be changed to general/under honorable conditions. SO I ASK AGAIN PLEASE CONSIDER MY APPLICATION. At this time, the applicant has not provided any documentation of good character and conduct.

  • NAVY | DRB | 2000_Navy | ND00-00094

    Original file (ND00-00094.rtf) Auto-classification: Denied

    The discharge shall remain: UNDER OTHER THAN HONORABLE CONDITIONS but the reason should be corrected to say PATTERN OF MISCONDUCT, authority: NAVMILPERSMAN, Article 1910-140 (formerly 3630600).The NDRB noted an administrative error on the original DD Form 214. Applicant declared a deserter 98MAR13, having been an unauthorized absentee since 1130 98FEB10, from USS THEODORE ROOSEVELT (CVN 71).980616: Surrendered at Personnel Support Activity, MacDill AFB, Tampa, FL. The names, and votes of...

  • NAVY | DRB | 2003_Navy | ND03-00173

    Original file (ND03-00173.rtf) Auto-classification: Denied

    (Equity Issue) Pursuant to 10 USC 874 (b) (UCMJ, Article 74) and in accordance with SECNAVINST 5420.174C, enclosure (1), paragraphs 2.24 and 9.3, this former member requests the Board’s clemency relief with up-grade of his characterization of service on the basis of his post-service conduct.” Documentation In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:Applicant’s DD Form 214 (2) Letter from Applicant, dated October 1,...

  • NAVY | DRB | 2003_Navy | ND03-00550

    Original file (ND03-00550.rtf) Auto-classification: Denied

    ND03-00550 Applicant’s Request The application for discharge review was received on 20030214. PART I - APPLICANT’S ISSUES AND DOCUMENTATION Naval Council of Personnel Boards Attn: Naval Discharge Review Board 720 Kennon Street SE Rm 309

  • NAVY | DRB | 2000_Navy | ND00-00263

    Original file (ND00-00263.rtf) Auto-classification: Denied

    Pt instructed to stop drinking.950120: Applicant to unauthorized absence 0700, 20Jan95. At that time the hospital staff did not know that the patient’s command had received discharge authority with a separation date of 29 Apr 95 and had arranged for him to be separated with an Other Than Honorable discharge. Under the Manual for Courts-Martial, a punitive discharge is authorized for violation of the Uniform Code of Military Justice, Article 86, for unauthorized absence for a period in...

  • NAVY | DRB | 1999_Navy | ND99-00923

    Original file (ND99-00923.rtf) Auto-classification: Denied

    DEPARTMENT OF THE NAVY NAVAL DISCHARGE REVIEW BOARD (NDRB) DISCHARGE REVIEWDECISIONAL DOCUMENT ex-AOAR, USN Docket No. ND99-00923 Applicant’s Request The application for discharge review, received 990629, requested that the characterization of service on the discharge be changed to honorable. In the acknowledgement letter to the applicant, he was informed that the Naval Discharge Review Board (NDRB) first conducts a documentary review prior to any personal appearance hearing.

  • NAVY | DRB | 2004_Navy | ND04-01015

    Original file (ND04-01015.rtf) Auto-classification: Denied

    ND04-01015 Applicant’s Request The application for discharge review was received on 20040610. Documentation In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:Copies of DD Form 214 (2) Letter from Applicant dated June 25, 2004 Letter from D_ W_, Corrections Social Worker, State of Wisconsin Department of Corrections dated June 22, 2004 PART II - SUMMARY OF SERVICE Prior Service (component, dates of service, type of...