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NAVY | DRB | 2002_Navy | ND02-00139
Original file (ND02-00139.rtf) Auto-classification: Denied


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

ex-SR, USN
Docket No. ND02-00139

Applicant’s Request
The application for discharge review, received 011023, requested that the characterization of service awarded to the Applicant upon his discharge be changed to general/under honorable conditions. 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 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 3640420.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

 Prior to the documentary discharge review, the Applicant introduced no issues as block 8 on the DD Form 293 is blank.

Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Copy of DD Form 214

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: USN                        None
         Inactive: USNR (DEP)     860327 - 860701  COG

 Period of Service Under Review :
Date of Enlistment: 860702               Date of Discharge: 890418

 Length of Service (years, months, days):

         Active: 02 02 07
         Inactive: None

 Age at Entry: 18                          Years Contracted: 4

Education Level: 12                        AFQT: 29

 Highest Rate: SR

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: NMA                  Behavior: NMA             OTA: NMA

 Military Decorations: None

 Unit/Campaign/Service Awards: None

Days of Unauthorized Absence: 179

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 :

870331:  Report of Declaration of Deserter (NAVPERS 1600-3). Applicant declared a deserter on 861218 having been an unauthorized absentee since 0001, 861218 from USS GUAM (LPH-9).

870526:  Report of Return of Deserter. Applicant apprehended by civil authorities on 870524 (1000) in Wisconsin Rapids, WI. Returned to military control 870524 (1125). Orig retains custody pending transfer to NACU NORVA, FFT TPU NORVA, FFT USS GUAM. EDA 870528.

870707:  Special Court Martial
         Charge I: violation of the UCMJ, Article 86: Unauthorized absence 861123 – 861216, [23 days/S].
         Charge II: violation of the UCMJ, Article 85: Absent in desertion from 861218 until apprehended on 870524(156days/A).
Charge III: violation of the UCMJ, Article 92: (2 Specifications), Spec 1: Failed to obey a lawful order on 861122; Spec 2: Failed to obey a lawful order on 861217.
          Findings: to Charge I and its specification thereunder, guilty. To Charge II and its specification thereunder, guilty, excepting " and intent to remain away therefrom permanently" and "in desertion". To Charge III and specifications 1 and 2 thereunder, guilty.
         Sentence: CHL for 60 days, forfeiture of $420.00 pay per month for 2 months, Bad Conduct discharge.
         CA 871123: Sentence approved and ordered executed, except for bad conduct discharge.
        
870712:  Released from confinement and restored to full duty.

 870723:  Applicant waived clemency review (Extracted from NC&PB computer system).
870723:  To appellate leave.
881020:  NMCCMR: The findings of guilty and the sentence, as approved on review, are affirmed.
890418:  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 890418 with a bad conduct discharge resulting from a Special Court Martial conviction (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 introduced no decisional issues for consideration by the Board. Relief denied.

The following is provided for the benefit of the Applicant. 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. E vidence 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 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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