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NAVY | DRB | 2003_Navy | ND03-00035
Original file (ND03-00035.rtf) Auto-classification: Denied


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

ex-ADAR, USNR
Docket No. ND03-00035

Applicant’s Request
The application for discharge review, received 20021004, requested that the characterization of service on the discharge be changed to honorable. The applicant requested a documentary record discharge review. The applicant did not list any representative on the DD Form 293. In the acknowledgement letter the applicant was informed that he was approaching the 15 year point for review by this Board and was encouraged to attend a personal appearance hearing in the Washington, D. C. area. The applicant did not respond.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20030828. 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. When I made the decision that caused me to receive a bad conduct discharge, I was too ignorant and immature to realize my decisions would last a life time. Now that I am older, I am trying to salvage as much of my life as possible. Hopefully with the help of the council, I maybe able to this. Whatever discharge change, if any, the council deems or does not deem necessary, I must accept that decision. I am leaving block number 3 blank so council can make type of change decision.

 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)     None
         Active: USN                        None

 Period of Service Under Review :
Date of Enlistment: 851203               Date of Discharge: 880304

 Length of Service (years, months, days):

         Active: 01 04 24
         Inactive: 00 00 03

 Age at Entry: 17                          Years Contracted: 8

 Education Level: 10                        AFQT: 58

 Highest Rate: ADAR

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: NOB                  Behavior: NOB             OTA: NOB

 Military Decorations: None

 Unit/Campaign/Service Awards: None

 Days of Unauthorized Absence: 231

 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 :

851206:  Ordered to active duty for 36 months under the Active Mariner program.
860505:  NJP for violation of UCMJ, Article 116: Riot or breach of peace, to wit: SNM did participate in a breach of peace at barracks S-400 by fighting, on or about 860425.
         Award: Forfeiture of $149.00 pay per month for 1 month, extra duty for 14 days. No indication of appeal in the record.
860505:  Retention Warning: Advised of deficiency (Violation of Article 116, UCMJ: Riot or breach of peace, to wit: SNM did participate in a breach of peace at the barracks S-400 by fighting, on or about 860425.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

870113:  Surrendered onboard Navy Marine Reserve Center, Greenville, SC at 1200, 870113 and directed to report to NAS Memphis for disciplinary disposition. Arrived at NAS Memphis 1331, 870114 and placed in restriction in lieu of arrest pending disciplinary disposition.

870126:  Pretrial restriction from 870126 to 870402.
870402:  Special Court Martial
         Charge I : violation of the UCMJ, Article 86, (6) Specifications ,
         Specification 1 : Unauthorized absence 860602 – 870113, [226 days/S.]
         Specification 2 : Unauthorized absence 870118 – 870120, [2 days] Specification 3 : Unauthorized absence from 0800, 870123 to 0800 870126, [3 days/A.] Specification 4: Fail to go at 2000, 870204, Specification 5 : Fail to go at 1800, 870207, Specification 6 : Fail to go at 1330, 870208. Specification 7 : Fail to go at 0700, 870218. Charge II : violation of the UCMJ, Article 92: Violation of a lawful general regulation. Charge II : violation of the UCMJ, Article 112a:
         Findings: to Charge I and specifications 1 and 2 thereunder, guilty.
         Sentence: Confinement for 3 months, forfeiture of $438.00 pay per month for 3 months, Bad Conduct discharge.
         CA 870506: Sentence approved and ordered executed, except for bad conduct discharge.
        

870402:  Joined the Brig, Naval Station Treasure Island, San Francisco, California, for confinement.

870410:  Clemency review waived [Extracted from NC&PB Computer System].

870619:  From confinement; to appellate leave.
870730:  NMCCMR: The findings of guilty and sentence, as approved on review, are affirmed.
880217:  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 19880304 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).

In the Applicant’s issue 1, he states he was too ignorant and immature to realize his decisions would last a lifetime. The Applicant wants to salvage as much of his life as possible.

The following is provided for the edification of the Applicant. Normally, to permit relief, an error of propriety or equity must have occurred during the period of enlistment in question. No errors were discovered during a review of the Applicant’s enlistment and subsequent discharge. The NDRB is authorized to consider post-service factors in the recharacterization of a discharge. However, 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 the civilian life subsequent to leaving the service. Outstanding post-service conduct, 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 can be considered. Examples of documentation to provide to the Board for consideration include verification of educational pursuits, verifiable employment record(s), documentation of community service, certification of non-involvement with civil authorities, and credible evidence of a substance free lifestyle. At this time, the applicant has not provided any documentation for the Board to consider. Therefore, no relief will be granted.
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. 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 Rm 309
                  Washington Navy Yard D.C. 20374-5023    


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