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NAVY | DRB | 2003_Navy | ND03-00477
Original file (ND03-00477.rtf) Auto-classification: Denied


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

ex-FR, USN
Docket No. ND03-00477

Applicant’s Request
The application for discharge review was received on 20030127. The Applicant requests the characterization of service received at the time of discharge be changed to honorable. The Applicant requests 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 20031229. 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 issues, as stated on the application:

“1. I was discharged from the U.S. Navy because of being awall missing ship movement. At the time my present wife and I were expecting another child and she miscarried, that was not the only reason we were really stressed about being separated and also financially also. I needed to grow up and I know relize I was really stupid. Since getting out of the military I have grown up but because of a Bad Conduct Discharge I have found it hard to do or pursue the one thing I have shown I can do to keep my family up which is security, I have found I am very good at it and want to try and get into a casino but can’t because of my military discharge. I hope you consider upgrading my discharge, I have grown up, and I thank you for your time.”
Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Copies of DD Form 214 (2)
Letter of Appreciation

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     860214 - 860227  COG
         Active: USN                        820504 - 820524  HON (Inability to adapt to military service)

 Period of Service Under Review :
Date of Enlistment: 860228               Date of Discharge: 880418

 Length of Service (years, months, days):

         Active: 01 02 04
         Inactive: None

 Age at Entry: 22                          Years Contracted: 4

Education Level: 12                        AFQT: 41

 Highest Rate: FR

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: NMA                  Behavior: NMA             OTA: NMA

 Military Decorations: None

 Unit/Campaign/Service Awards: None

 Days of Unauthorized Absence: 268

 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 :

861204:  Report of Declaration of Deserter (NAVPERS 1600-3). Applicant declared a deserter on 861203 having been an unauthorized absentee since 0500, 861103 from USS OGDEN (LPD-5).

870722:  Pretrial confinement from 870722-870724.

870729:  Report of Return of Deserter. Applicant apprehended by civil authorities on 870722 (1045) at Las Vegas, NV. Returned to military control 870722 (1810). Retained USS OGDEN (LPD-5), Long Beach CA for disciplinary action.

870804:  Special Court Martial
         Charge I: violation of the UCMJ, Article 86, (2 Specifications).
         Specification 1: Unauthorized absence 861103 – 870722, [261 days/A.]
         Specification 2: Unauthorized absence 860804 – 860811, [7 days]. Charge II: violation of the UCMJ, Article 87: Missing movement on 860804.
         Findings: to Charge I and specification 1 thereunder, guilty, to specification 2 under Charge I is changed to a finding of guilty to absence without authority from the USS OGDEN (LPD-5) from 880804 until 880811 in violation of Article 86. To Charge II and specification thereunder, guilty.
         Sentence: CHL for 31 days, Bad Conduct discharge.
         CA 870911: Sentence approved and ordered executed, except for bad conduct discharge.

870807:  Waived rights to clemency review [Extracted from NC&PB computer system].

870826:  Released from confinement and restored to full duty status. Retained onboard for further disposition and appellate leave processing.

871007:  NMCCMR: The findings of guilty and sentence, as approved on review, are affirmed.
880413:  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 19880418 with a bad conduct discharge as 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). 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 Board recognizes that the Applicant is remorseful for the poor judgment he exercised during his military career. However, the Board will not recharacterize a former member’s discharge because he realizes he made mistakes while serving his country. T he Applicant’s service was marred by two long-term unauthorized absences ending by apprehension. The Applicant’s conduct, which forms the primary basis for determining the character of his service, reflects his willful failure to meet the requirements of his contract with the U.S. Navy and falls far short of that required for an upgrade of his characterization of service. Relief denied.

There is no law or regulation, which provides that a discharge may be upgraded, based solely for the purposes of obtaining better employment. Relief denied.

The following is provided for the edification of the Applicant. 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. After a complete review of the entire record, including the evidence submitted by the Applicant, the board determined that his discharge was appropriate and that his evidence of post-service conduct was found not to mitigate the conduct for which he was discharged.


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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