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NAVY | DRB | 2002_Navy | ND02-00743
Original file (ND02-00743.rtf) Auto-classification: Denied


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

ex-FR, USN
Docket No. ND02-00743

Applicant’s Request
The application for discharge review, received 020430, requested that the characterization of service on the discharge be changed to general/under honorable conditions or entry level separation or uncharacterized. The Applicant requested a documentary record discharge review. The Applicant did not list any representative on the DD Form 293. Subsequent to the application for review, the Applicant obtained American Legion as his representative.

 Decision

A documentary discharge review was conducted in Washington, D.C. on 030424. 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/COURT MARTIAL CONVICTION, authority: NAVMILPERSMAN, Article 3640420.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as submitted

1. (Equity Issue) This former member requests that the Board include provisions of SECNAVINST 5420.174C, enclosure (1), Chapter 9, as it pertains to post-service conduct, in assessing the merits of this application.
Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Copies of DD Form 214 (2)
Copy of G.I. Bill
Copy of FedEx Priority Overnight Receipt (2)

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     891018 - 891026  COG
         Active: USN               None

 Period of Service Under Review :
Date of Enlistment: 891027               Date of Discharge: 941017

 Length of Service (years, months, days):

         Active: 03 10 20
         Inactive: None

 Age at Entry: 18                          Years Contracted: 4

Education Level: 12                        AFQT: 42

 Highest Rate: FN

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 2.80 (2)    Behavior: 2.80 (2)                OTA: 3.10

 Military Decorations: None

 Unit/Campaign/Service Awards: NUC, BATTLE"E"RIBBON, NDSM, SASMwb*, SSDR, KLM

 Days of Unauthorized Absence: 273

 Character, Narrative Reason, and Authority of Discharge (at time of issuance):

BAD CONDUCT/COURT MARTIAL CONVICTION, authority: NAVMILPERSMAN, Article 3640420.

 Chronological Listing of Significant Service Events :

901203:  Unauthorized absence from 901203 until 901221 [19 days/A].

901203   Applicant to unauthorized absence from USS RANGER.

910104:  Report of Declaration of Deserter (NAVPERS 1600-3). Applicant declared a deserter on 910103 having been an unauthorized absentee since 0700, 901203.

910201:  Report of Return of Deserter. Applicant apprehended by civil authorities on 901221 (2100) at Paulsboro, NJ. Returned to military control 901222 (0120). Retained onboard NAVBRIG NAVSTA PHILA PA, awaiting transfer authorization to transfer back to parent command under TAOS.
910207:  Unauthorized absence from 910207 until 910214 [7 days/S]

910326:  Unauthorized absence from 910326 until 910401 [6 days/S]

920801   Applicant missed ship’s movement.

920922   Applicant to unauthorized absence.

921027:  Report of Declaration of Deserter (NAVPERS 1600-3). Applicant declared a deserter on 921022 having been an unauthorized absentee since 0630, 920922 from USS RANGER VIA TPU SAN DIEGO, CA.

930512:  Applicant apprehended.

930611:  Report of Return of Deserter. Applicant apprehended by military authorities on 930512 (1200) at Applicant's residence. Retained onboard NAVCONBRIG MIRAMAR, CA.
Note: Applicant to pre-trial confinement from 930528 to 930628.
930628:  Special Court Martial
         Charge I: violation of the UCMJ, Article 86, (5) Specifications.
         Specification 1: Unauthorized absence from on or about 920922 until 930512, [232 days/A.]; Specification 2: Unauthorized absence from 920503 until 920504 [1 day/S]; Specification 3: Unauthorized absence from 920509 until 920512 [3 days/S]; Specification 4: Unauthorized absence from on or about 920703 until 920706, [3 days/S]; Specification 5: Unauthorized absence from on or about 920801 until 920803, [2 days/S]. Charge II: violation of the UCMJ, Article 87: Missed ship's movement through design on 920801. Charge III: violation of the UCMJ, Article 107: Make false official statement.
         Findings: To Charge I and specifications 1 through 5 thereunder, guilty. To Charge II and specification thereunder, guilty. To Charge III and specification thereunder, guilty.
         Sentence: CHL for 75 days, reduction to E-1, Bad Conduct discharge.
         CA 930812: Sentence approved and ordered executed, except for bad conduct discharge.
        
930702:  Applicant waived clemency review [Extracted from NC&PB computer system].

930713:  Released from confinement and restored to full duty status, processed for appellate leave.

 931222:  NMCCMR: The findings of guilty and sentence, as approved on review, are affirmed.
[Note: On 5 Oct 94, the NMCCMR changed their name to the Navy Marine Corps Court of Criminal Appeals (NMCCCA)]
940707:  COMA: Affirmed.
[Note: On 5 Oct 94, COMA changed their name to the United States Court of Appeals for the Armed Forces (USCAAF)]
941017:  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 941017 with a bad conduct discharge due to 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).

Issue 1: T here 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, a positive employment record, documentation of community service, and certification of non-involvement with civil authorities, are examples of verifiable documents that should be provided to receive consideration for relief, based on post-service conduct. The Applicant failed to provide any post-service documentation. Relief denied.

The Applicant remains eligible for a personal appearance hearing, provided an application is received, at the NDRB, within 15 years from the date of discharge. The Applicant can provide additional documentation to support any claims of post-service accomplishments at that time. Representation at a personal appearance hearing is recommended but not required.


Pertinent Regulation/Law (at time of discharge)

 A. Naval Military Personnel Manual, (NAVPERS 15560C), Change 5, effective
05 Mar 93 until 02 Oct 96, 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 " 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 Rm309
                  Washington Navy Yard DC 20374-5023      

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