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NAVY | DRB | 2002_Navy | ND02-00901
Original file (ND02-00901.rtf) Auto-classification: Denied


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

ex-FR, USN
Docket No. ND02-00901

Applicant’s Request
The application for discharge review, received 020612, requested that the characterization of service on the 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 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/COURT MARTIAL CONVICTION, authority: NAVMILPERSMAN, Article 3640420.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as submitted

1. I had gone on emergency leave because my grandmother had died, during this timei was very distrought about my grandmothers death I'm not looking for excuses, but I feel as though I should have been provided a chaplain to help me cope during my trying time.

2. During the time of my discharge I wasn't provided rehabilitation or informed of any rehabilitation program whereas I could have gotten help for my drug problem I feel like the government wasn't fair in handling re-hab sailors.

3. I am wanting to become an police officer, I really have changed and want to become a police officer so that I can maybe make a difference in my community.

4. My absent without leave was a result of that I was ashamed of myself and I didn't want to face my peers and elder sailors. I didn't dessert my country, I just was disappointed in myself so I ran away. I just want another chance to prove myself!

 Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Copy of DD Form 214
Letter of Characterization from Pastor J_ D. P_, JR dated November 28, 2001
Letter of Characterization from J_ D. P_, Jr, 2 ND Lt Chaplain Candidate USAFR dated December 4, 2001

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     910321 - 910325  COG
         Active: USN                        None

 Period of Service Under Review :
Date of Enlistment: 910326               Date of Discharge: 940718

 Length of Service (years, months, days):

         Active: 02 11 07
         Inactive: None

 Age at Entry: 21                          Years Contracted: 4

Education Level: 12                        AFQT: 64

 Highest Rate: FN

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.40 (1)    Behavior: 3.60 (1)                OTA: 3.6 0

 Military Decorations: None

 Unit/Campaign/Service Awards: NDSM

 Days of Unauthorized Absence: 135

 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 :

920915:  Civil Conviction: [General District Court Traffic Division Norfolk, Virginia] for driving under the influence (18.2-266 SC); and driving with suspended/revoked license.
 Sentence: Charge I: $350.00 fine, plus court costs; 90 days in jail (suspended); 12 months suspension of operator's permit; and attend VASAP; and Charge II: Reduced to failure to carry license, and dismissed.
930223:  Report of Declaration of Deserter (NAVPERS 1600-3). Applicant declared a deserter on 920223 having been an unauthorized absentee since 1800, 920124 from USS GUADALCANAL (LPH 7).

930609:  Report of Return of Deserter. Applicant apprehended by civil authorities on 930609 (0045) at Norfolk, VA, by Norfolk City Police Department. Returned to military control 930609 (0200), by Hampton Roads Area Shore Patrol. Transferred to, and received on board USS GUADALCANAL (LPH-7) at 0321, 930609. Retained on board for disciplinary action.

930609:  Pretrial confinement from 930609 to 930630.

930630:  Special Court-Martial [trial date 930630].
         Charge I: violation of the UCMJ, Article 112a: Wrongful use of cocaine on or about 921224; Charge II: violation of the UCMJ, Article 112a: Wrongful use of marijuana on or about 921224; Charge III: violation of the UCMJ, Article 134: Break restriction on or about 930124; Additional Charge: Wrongful use of marijuana on or about 930601.
         Findings: to Charge I, II, III, and specifications thereunder, guilty. To Additional Charge and specification thereunder, guilty.
         Sentence: Confinement for 4 months, forfeiture of $500.00 pay per month for 4 months, reduction to E-1, bad conduct discharge.
         CA 930925: The findings and sentence are approved and, except for that part of the sentence extending to a bad conduct discharge, will be executed. However, the execution of that part of the sentence adjudging confinement in excess of 75 days is suspended for a period of 12 months from the date of trial, at which time, unless the suspension is sooner vacated, the suspended part of the sentence will be remitted without further action. The Naval Brig, NAVSTA NORVA is designated as the place of confinement. Day for Day admin credit for lawful pretrial confinement, in the amount of 21 days and 4 days judicially ordered credit shall be granted toward the service of the approved sentence to confinement. The service of that portion of confinement to be suspended was deferred on 930630, and the deferment is hereby rescinded effective this date, 930925.
        
930727:  Applicant waived clemency review (Extracted from NC&PB computer system).

930806:  Released from confinement; to appellate leave.
940408:  NMCCMR: The findings of guilty and sentence, as approved on review, are affirmed.

940718:  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 940718 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).

 Issues 1-4. 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 and documentation available for review devoid of any mitigating or extenuating factors that would 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 inequity must have existed during the period of enlistment in question. No such error or inequity is evident 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. 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. 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 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 Rm309
                  Washington Navy Yard DC 20374-5023      

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