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NAVY | DRB | 2003_Navy | ND03-00173
Original file (ND03-00173.rtf) Auto-classification: Denied


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

ex-OSSR, USN
Docket No. ND03-00173

Applicant’s Request
The application for discharge review, received 20021107, 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 listed the American Legion as the representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20031003. 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 5815-010 (formerly 3640420).

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issue submitted by Applicant’s counsel/representative (American Legion):

“1. (Equity Issue) Pursuant to 10 USC 874 (b) (UCMJ, Article 74) and in accordance with SECNAVINST 5420.174C, enclosure (1), paragraphs 2.24 and 9.3, this former member requests the Board’s clemency relief with up-grade of his characterization of service on the basis of his post-service conduct.”
Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant’s DD Form 214 (2)
Letter from Applicant, dated October 1, 2002 (2)
Certificate of Death (mother’s)
Certificate of Fetal Death

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     19910717 - 19920202      COG
         Active: None

 Period of Service Under Review :
Date of Enlistment: 19920203             Date of Discharge: 19990521

 Length of Service (years, months, days):

         Active: 07 03 19         Does not exclude lost time
         Inactive: None

 Age at Entry: 21                          Years Contracted: 4

 Education Level: 12                        AFQT: 35

 Highest Rate: OSSN

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.50 (2)             Behavior: 3.70 (2)                OTA: 3.60

 Military Decorations: None

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

 Days of Unauthorized Absence: 1930

 Character, Narrative Reason, and Authority of Discharge (at time of issuance):

BAD CONDUCT/Convicted by special court martial, authority: NAVMILPERSMAN, Article 5815-010 (formerly 3640420).

 Chronological Listing of Significant Service Events :

930417:  Applicant declared a deserter.
930709:  Summary Court-Martial.
         Charge I: violation of the UCMJ, Article 86:
         Specification: Unauthorized absence from 0700, 930318 to 1015, 930615 (86 days/surrendered).
         Finding: to Charge I and the specification thereunder, guilty.
         Sentence: Forfeiture of $250.00, confinement for 30 days.
         CA action 930709: Sentence approved and ordered executed.

930709:  Applicant to confinement.

930802:  Applicant from confinement.

940328:  Applicant to unauthorized absence 0700, 940328.

940427:  Applicant declared a deserter.

980313:  Applicant apprehended then sent to pretrial confinement.

980427:  Applicant from pretrial confinement.

980427:  Special Court Martial
         Charge I: violation of the UCMJ, Article 86:
         Specification: Unauthorized absence from 940328 to 980313.
         Findings: to Charge I and specifications 1 thereunder, guilty.
         Sentence: Confinement for 30 days, reduction to OSSR, Bad Conduct discharge.
         CA 980902: Sentence approved and ordered executed, except for bad conduct discharge.
         SA: see SSPCMO.

990222:  NMCCCA: The findings of guilty and sentence, as approved on review, are affirmed.
990521:  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 19990521 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. The Applicant’s representatiave requests the Board’s clemency relief based on his post-service conduct.

The Applicant provided no documentary evidence for clemency consideration by the Board. The discharge was proper and equitable. Relief denied.

 Normally, to permit relief, an error or inequity must have existed during the period of enlistment in question. No errors or inequities were discovered in the execution of the Applicant’s 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 forward to the Board include proof 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 (if appropriate). At this time, the applicant has not provided sufficient documentation for the Board to consider. Therefore, no relief will be granted.
He 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. 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 15560C), Change 22, effective 15 Dec 98 to 21 Aug 2002, Article 5815-010 (formerly 3640420), Executing a Dishonorable or Bad Conduct Discharge.

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 DC 20374-5023      


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