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NAVY | DRB | 2003_Navy | ND03-00167
Original file (ND03-00167.rtf) Auto-classification: Denied


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

ex-BMSR, USN
Docket No. ND03-00167

Applicant’s Request
The application for discharge review was received on 20021106. The Applicant requested the characterization of service received at the time of discharge be changed to honorable. The Applicant requested a personal appearance hearing discharge review before the Board in the Washington National Capital Region. The Applicant listed Disabled American Veterans as the representative on the DD Form 293.

Decision

A personal appearance hearing discharge review was conducted in Washington, D.C. on 20040330. After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, no impropriety or inequity in the characterization of the Applicant’s service was discovered by the NDRB. 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 stated

 Applicant’s issue, as stated during the Applicant’s personal hearing:

 “1. To respectfully request to seek and be granted clemency by the panel.”


Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Copies of DD Form 214 (2)
Notice from County of San Diego Dept. of Human Resources
Message from County of San Diego Dept. of Human Resources
Confirmation of Citizen Academy Attendance
Criminal Record from Orange County, dated May 15, 2002

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     None
         Active: USN                        820209 - 850225  HON

 Period of Service Under Review :
Date of Enlistment: 850226               Date of Discharge: 880603

 Length of Service (years, months, days):

         Active: 02 04 25
         Inactive: None

 Age at Entry: 21                          Years Contracted: 4 (3 months extension)

 Education Level: 12                        AFQT: 33

 Highest Rate: BM3

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.50 (2)    Behavior: 3.60 (2)                OTA: 3.50

 Military Decorations: None

 Unit/Campaign/Service Awards: SSDR(w1*)

 Days of Unauthorized Absence: 249

 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 :

850226:  Reenlisted on board USS SACRAMENTO (AOE-1) for 4 years.

851003:  Pre-trial confinement 851003 to 851008.

 851011:  NJP for violation of UCMJ, Article 86: Without authority, absent himself from his unit, to wit: USS BERKELEY (DDG-15).
         Award: Forfeiture of $100.00 pay per month for 1 month, reduction to E-3 (suspended for 6 months). No indication of appeal in the record.
851101:  Previous reduction in rate awarded at CO’s NJP of 851011 vacated.

 860216:  Report of Declaration of Deserter (NAVPERS 1600-3). Applicant declared a deserter on 860213 having been an unauthorized absentee since 0700, 860113 from USS BERKELEY (DDG-15).

860321:  Report of Return of Deserter. Applicant surrendered to military authorities on 860308 (1400) onboard USS BERKELEY (DDG-15). Returned to military control 860308 (1400). Retained onboard for disciplinary action.

860419:  Report of Declaration of Deserter (NAVPERS 1600-3). Applicant declared a deserter on 860417 having been an unauthorized absentee since 0700, 860317 from USS BERKELEY (DDG-15).

860927:  Pre-trial confinement 860927 to 860929.

861008:  Pre-trial restriction 861008 to 861105.

861105:  Special Court Martial
         Charge I: violation of the UCMJ, Article 86, (2) Specifications.
         Specification 1: Unauthorized absence from USS BERKELEY (DDG-15) from on or about 860113 until on or about 860308, [54 days/S.]
         Specification 2: Unauthorized absence from USS BERKELEY (DDG-15) from on or about 860317 until on or about 860927, [196 days/S.]
         Findings: to Charge I and specifications 1 and 2 thereunder, guilty.
         Sentence: Confinement for 3 months, forfeiture of $426.00 pay per month for 3 months, reduction to E-1, Bad Conduct discharge.
         CA 861205: Sentence is approved except for that part of the sentence extending to a bad conduct discharge, will be executed.
        
861212:  Applicant waived rights to clemency review [Extracted from NC&PB computer system].

870109:  Released from confinement and returned to full duty.

870319:  NMCCMR: The findings of guilty and sentence, as approved on review, are affirmed.
980601:  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 19880603 with a bad conduct discharge which was the sentence adjudged by a properly convened special court-martial. That sentence was subsequently approved by both the convening and appellate review authorities (A and (B). The Board presumed regularity in the conduct of governmental affairs (C).

Issue 1: T he action of the NDRB is restricted to upgrades based upon clemency only (C, Part IV) for a discharge adjudged by a court-martial case tried under the Uniform Code of Military Justice. 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. Relief is therefore denied.


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.

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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