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NAVY | DRB | 2002_Navy | ND02-00896
Original file (ND02-00896.rtf) Auto-classification: Denied


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

ex-FR, USNR
Docket No. ND02-00896

Applicant’s Request
The application for discharge review, received 020610, 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.

Decision

A documentary discharge review was conducted in Washington, D.C. on 030311. 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, as submitted

1. My name is K_ D. A_, and I would like to try to get my discharge upgraded to a higher or a better discharge. At the present time, I have a bad conduct discharge I am almost thirty six years of age now. I know a lot more now, then I knew years ago. I was real young at the time. I have scoliosis real bad. My back hurts me a lot when I walk around in a mall, or any kind of standing for a long periods of time. I always end up having to sit down to rest my back before going on. I realize now I should have waited to get a medical discharge, but I got scared about my back. I went to see a doctor about it and he wanted to operate on it. I didn't want this, anyone would be scared to have a back operation. My back will never be any better. I have X-rays from back then to show that my back was is like this. I can't work at just anything. I need this upgraded, so I can have the choice to get a better job, or a job I can do. I don't want to ever have to sign up on S.S.I. I want to try to work, if possible. I want to be a productive person, like so many others. I would appreciate your help very much. I hope you can help me to be a productive person. Thank you.

 Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Copy of DD Form 214
Letter and photographs from Applicant’s Mother, undated
Character Reference Letter from E_ D. M_, Retired Postmaster & Retired Lt. Col (Army), undated
Character Reference Letter from D_ W. W__, II Deputy, Fayette County Sheriff's Department, dated April 17, 2002
Character Reference Letter from B_ D.R_, Owner Tri-County Medical & Second Ave. Grocery, dated April 21, 2002

PART II - SUMMARY OF SERVICE

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

 Period of Service Under Review :
Date of Enlistment: 860916               Date of Discharge: 890309

 Length of Service (years, months, days):

         Active: 01 09 08                  [Does not exclude lost time]
         Inactive: 00 03 07

 Age at Entry: 20                          Years Contracted: 8

 Education Level: 12                        AFQT: 35

 Highest Rate: FA

 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: 122

 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 :

861223:  Ordered to active duty for 36 months under the Active Mariner program.

 870423   Applicant to unauthorized absence this date, intentions unknown.

870522   Applicant declared a deserter this date.

870530:  Report of Declaration of Deserter (NAVPERS 1600-3). Applicant declared a deserter on 870522 having been an unauthorized absentee since 0645, 870423 from USS PENSACOLA.

870825:  Report of Return of Deserter. Applicant surrendered to military authorities on 870823 (2200) at NTC Great Lakes IL. Returned to military control 870823 (2200).

871104:  Special Court Martial [trial date 871104]
         Charge I: violation of the UCMJ, Article 86: Unauthorized absence 870423 – 870823, [122 days/S.]
         Findings: to Charge I and specification 1 thereunder, guilty.
         Sentence: Confinement for 45 days, forfeiture of $425.00 pay per month for 2 months, reduction to E-1, Bad Conduct discharge.
         CA 880218: Sentence approved and ordered executed, except for bad conduct discharge.
        
871104:  Joined Naval Brig Norfolk, VA for confinement.

871208:  Applicant waived clemency review.
 [Extracted from NC&PB computer system]
871211:  From confinement; to appellate leave.
880616:  NMCCMR: The findings of guilty and sentence, as approved on review, are affirmed.
890309:  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 890309 with a bad conduct discharge 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).

 Issue 1: The Applicant requests his discharge characterization be upgraded so he can have the choice to get a better job. The Board has no authority to upgrade a discharge for the sole purpose of enhancing employment opportunities as requested by the Applicant. The Board’s charter limits its review to a determination on the propriety and equity of the discharge. In the Applicant’s case the Board could discern no impropriety or inequity and therefore considered the Applicant’s discharge was proper and equitable. The Board’s charter limits its review to a determination on the propriety and equity of the discharge. The Applicant’s discharge was found to be proper and equitable as issued. Although the Applicant claims immaturity as the reason for his unauthorized absence, t he Applicant’s conduct, which forms the primary basis for determining the character of his service, reflects his disobedience of the orders and directives that regulate good order and discipline in the naval service, and falls short of that required for an honorable characterization of service. The record is devoid of evidence that the Applicant was not responsible for his conduct or that he should not be held accountable for his actions. An upgrade to honorable or general (under honorable conditions) would be inappropriate. Relief denied.

 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. After a complete review of the record, including the evidence submitted by the Applicant, the Board determined that the Applicant’s discharge was proper and equitable and that his evidence of post service accomplishments was found not to mitigate the misconduct for which he was discharged. 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 . 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 " 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 D.C. 20374-5023    


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