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NAVY | DRB | 2002_Navy | ND02-00419
Original file (ND02-00419.rtf) Auto-classification: Denied


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


ex-FR, USN
Docket No. ND02-00419

Applicant’s Request
The application for discharge review, received 020221, 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 listed Disabled American Veterans as the representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 021029. 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).

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as submitted

1. I would like to thank the Naval Council of Personnel Boards for reviewing my application to upgrade my discharge.
To whom it may concern I would like to upgrade my discharge from a bad conduct to a honorable or a general with honorable conditions. Before I got in trouble in 1998, I was a excellent sailor, I had been in the Navy since 1993 and had no trouble at all, I did what ever the Navy wanted me to do and I did it with pride. I committed one senseless act in the Navy it cost my a career in the Navy. I was foolish person at that time, I had paid the price for my actions. I would like to upgrade my discharge hopefully, because I still to this day want to serve my country and serve it with pride once again. I know I'm asking a lot but please review my service record and see that I was a good navy sailor and made one mistake, that I'm a shame for. Please consider my application to upgrade my discharge. Thank you very very much.
2. (DAV Issues)
 RE:      G_ S. L_
 SSN:     XXX XX XXXX Dear Chairperson:
 After a review of the Former Service Members (FSM) DD Form 149 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 support the contentions as set forth by the Applicant, in his quest that he be given the opportunity to up- grade his (Bad Conduct) Discharge with Court Martial Conviction to an Honorable Discharge. We respectfully request that the (FSM) be given Post Service consideration for his reason to apply for this discharge up grade to an Honorable.
The (FSM) joined the United States Naval Service on September 27, 1997 until February 16, 1999 where he plea quilty to a court-martial conviction on Four (4) counts of theft of property.
The (FSM) seeks now to change his Bad Conduct Discharge to a Honorable Discharge in an effort to receive his maximum benefits and entitlements for his military service and to reassess his life in hopes for a substantiate an secure job opportunities and to also, secure a better future for her and her family. The (FSM) now respectfully requests an equitable standard is applied as well as equity in treatment in seeking the boards' consideration in granting this request.
The (FSM) sincerely hopes that by respectfully requesting and being granted a Up-grade of discharge change from the United Naval Service, will further enhance the ideals he tried to achieve while serving in the Navy. The (FSM) feels that his discharge is a matter of Supreme Honor and Respect that he will cherish throughout his lifetime.
We respectfully request that the (FSM) be given complete and duly consideration by the board. We also respectfully request that the board consider each reasonable explanation submitted by the (FSM) who now seeks to up grade his Bad Conduct discharge to a more positive Honorable Discharge in an effort to maintain the character of his service as Honorable.
The (FSM) now realizes that his negative actions and extreme youthful endeavors were a negative impact and he had greatly suffered the negative effects of having to live daily with a Bad Conduct Discharge. The (FSM) had lived through the period of trying to adjust to the impact that having a Bad Conduct Discharge had on his job opportunities, family life and education benefits and even his presence in the community to serve as a role model for his children and to portray a active productive citizen?
We ask for the Boards careful and sympathetic consideration of all the evidence of record used in rendering a fair and impartial decision. These issues do not supersede any Issues previously submitted by the Applicant.
Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Copies of DD Form 214 (3)
Copy of Previous DD Form 214 (Honorable Discharge)
 Copies of Service Related Documents (18 pages)

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: USN                        930614 -950317   HON
          Inactive: USNR (DEP)     921229 - 930613  COG
          Inactive: USNR (DEP)     950922 - 950926  COG

 Period of Service Under Review :
Date of Enlistment: 950927               Date of Discharge: 990216

 Length of Service (years, months, days):
         Active: 02 04 28
          Inactive: None
Age at Entry: 23                          Years Contracted: 4

Education Level: 12                        AFQT: 45
Highest Rate: ABE3

 Final Enlisted Performance Evaluation Averages (number of marks):
Performance: 3.66 (3)    Behavior: 3.66 (3)                OTA: 3.52

 Military Decorations: None
Unit/Campaign/Service Awards: NDSM, KLM, NAVY"E"RIBBON, GCA
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 5815-010 (formerly 3640420).

 Chronological Listing of Significant Service Events :

980215:  Pre-trial confinement from 980215 to 980220.
980218:  Special Court-Martial
         Charge I: violation of the UCMJ, Article 121, (2 Specifications),
          Specification 1: Did on or about 971213 steal a Navy Exchange card, of some value, the property of Navy Exchange and issued to ABEAN R_; Specification 2: Did on or about 971213, with intent to defraud, falsely pretend to be ABEAN R_, then knowing the pretenses were false, and did wrongfully steal under false pretenses general merchandise of a value of about $585.00 the property of Navy Exchange. Charge II: violation of the UCMJ, Article 123: (2 Specifications), Specification 1: Did on or about 971213, with intent to defraud, falsely make the signature of ABEAN R_, as an endorsement to the U.S. Armed Forces ID Card, Specification 2: Did on or about 971213, with intent to defraud, falsely make the signature of ABEAN R_, as an endorsement to the receipt of the NEX Card.
         Findings: to Charge I and specifications 1 and 2 thereunder, guilty. To Charge II and specifications 1 and 2 thereunder, guilty.
         Sentence: Confinement for 45 days, reduction to E-1, bad conduct discharge.
         CA 980810: Sentence approved and ordered executed, except for the bad conduct discharge.
        
980220:  Joined the Puget Sound Waterfront Brig, Silverdale, Washington, for confinement.

980324:  From confinement; to appellate leave.
981112:  NMCCCA: The findings of guilty and sentence, as approved on review,
         are affirmed.
990216:  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 990216 with a bad conduct characterization of service 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).
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. 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, to receive benefits or enhance employment opportunities, or for good conduct in civilian life, subsequent to leaving the service. Relief not warranted.
The Applicant 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. Representation at a personal appearance hearing is recommended but not required.



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 " 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:

                  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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