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NAVY | DRB | 2002_Navy | ND02-01166
Original file (ND02-01166.rtf) Auto-classification: Denied


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

ex-DCFR, USN
Docket No. ND02-01166

Applicant’s Request
The application for discharge review, received 020814, 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 030501. 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 am a proud father of seven (4) girls (3) boys and I now wish to move on from the shadow of this type of discharge and be able to pursue better paying jobs.

 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):
         Inactive: USNR (DEP)     900131 - 900205  COG
        
Period of Service Under Review :
Date of Enlistment: 900206               Date of Discharge: 941011

 Length of Service (years, months, days):

         Active: 03 07 07                  (Does not exclude lost time)
         Inactive: None

 Age at Entry: 19                          Years Contracted: 4

Education Level: 11                        AFQT: 51

 Highest Rate: DCFN

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.50 (1)    Behavior: 3.60 (1)                OTA: 3.60

 Military Decorations: None

 Unit/Campaign/Service Awards: NDSM, SSDR, SASM, NUC

 Days of Unauthorized Absence: 294

 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 :

920224:  Summary Court-Martial for violation of UCMJ, Article 86: Unauthorized absence 911121-920110 (60 days), violation of UCMJ Article 87: Missing ship’s movement through design 911202.
         Award: Forfeiture of $523 per month for 1 month, confinement for 30 days, reduction to E-1. No indication of appeal in the record.
920224:  Retention Warning: Advised of deficiency (Summary court-martial for unauthorized absence and missing ship’s movement.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

930104   Applicant to unauthorized absence.

930202   Applicant declared a deserter.

930826   Apprehended by civilian authority.

930827:  Applicant returned to military custody and placed in Navy Brig, NAS Jacksonville, Fl for pre-trial confinement.

931019:  Special Court Martial [trial date 931019]
         Charge I: violation of the UCMJ, Article 86, (1) Specifications.
         Specification 1: Unauthorized absence 930104 – 930826, [234 days/A.]
         Findings: to Charge I and specifications 1, guilty.
         Sentence: Confinement for 4 months, forfeiture of $525 per month for 4 months, Bad Conduct discharge. Confinement suspended for 12 months.
         CA 931129: Sentence approved and ordered executed, except for bad conduct discharge.
        
940121:  NC&PB clemency not granted; restoration denied.

 940510:  NMCCCA: The findings of guilty and sentence, as approved on review, are affirmed.

940927:  COMA: Request for appeal denied.

941011:  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 941011 with a bad conduct discharge which was the sentence adjudged by a properly constituted special court-martial that was determined to be legal and proper, affirmed by appellate review authority and executed (A and (B). The Board presumed regularity in the conduct of governmental affairs (C). 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 (D and E).

Issue 1: With respect to a discharge adjudged by a court-martial case tried under the Uniform Code of Military Justice, the action of the NDRB is restricted to upgrades based upon clemency only (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 service records that the Board reviewed showed no mitigating or extenuating factors sufficient to offset the seriousness of the offenses for which the discharge was awarded. Additionally, the Board has no authority to upgrade a discharge for the sole purpose of enhancing employment opportunities as requested in the issue. Regulations limit the Board’s review to a determination on the propriety and equity of the discharge. In the Applicant’s case, the Board could not discern any impropriety or inequity and therefore considered his discharge proper and equitable. 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.

The Applicant is reminded that she remains eligible for a personal appearance hearing, provided an application is received at the NDRB within 15 years from the date of her 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. The Manual for courts-martial authorizes the award of a punitive discharge if adjudged as part of the sentence upon conviction by a special or general court martial for violation of the UCMJ, Article 86, (unauthorized absence for more than 30 days).

C. 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.

D. 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.

E. 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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