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NAVY | DRB | 2003_Navy | ND03-00727
Original file (ND03-00727.rtf) Auto-classification: Denied


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

ex-DR, USN
Docket No. ND03-00727

Applicant’s Request
The application for discharge review was received on 20030313. The Applicant requests the characterization of service received at the time of discharge be changed to entry level separation or uncharacterized and the reason for the discharge be changed to other than honorable. The Applicant requests a documentary record discharge review. The Applicant did not list any representative on the DD Form 293. Subsequent to the application, the applicant obtained representation by the Disabled American Veterans.

Decision

A documentary discharge review was conducted in Washington, D.C. on 200400401. 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 and narrative reason 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 stated

 Applicant’s issues, as stated on the application:

1. “I start going through renal failure back in 1991, I was losing protein through my urine. I went to Portsmouth Navy Hospital to confirm I was in early stage renal failure. In Dec 1997 my kidney finely completely and I got on dialyze. I now been on dialyze (hemo) almost six years ago. I done had 4 surgery which three on my left fore arm. The other was a tube in my stomach for potaneil dialyze which I done four time's day. The only change I got of not being on dialyzes (hemo) for the rest of my life is to get a transplant. I take an attention 25 mg for my blood pressure, renege 800mg to help keep prosper out of my body. I take adrac four times a day for inching and Theuptiuc-m vatiams for items I lost on hemo. I also take Epo for low blood cells and Hexall for my Perothiroid being high. I am on the machine for 4 hours day 3 days a week. I run a Fresines dialyze machine and an F-180 dialyzes kidney. The machine only help your kidney but it hurt all other organs, because of this reason I would like to be change to OTH or a greater improve discharge. I know my discharge crime was disrespect to my command, but I’m very sorry. I believe I do deserve another chance. Thank you for your help and matter.”

Additional issues submitted by Applicant’s counsel/representative (DISABLED AMERICAN VETERANS):

 2. After a review of the Former Service Members (FSM) DD Form 293 Application for the Review of Discharge or Dismissal from the Armed Forces of the United States and all of evidence assembled for review, we continue to note the contention of the appellant in his request for a discharge upgrade of his current Bad Conduct Discharge to that of Other Than Honorable.

The FSM served on active service from June 25, 1990 to May 12, 1995 at which time he was discharged due to Court – Martial Conviction.

The FSM requests equitable relief of the current Bad Conduct discharge stating that he deserve a second chance, and has suffered the effects of this discharge long enough.

As the representative, we ask that consideration be given to equitable relief, as this is a matter that involves a determination whether a discharge should be changed under the equity standards, to include any issue upon which the applicant submits to the Board’s discretionary authority, under SECNAVIST 5420.174C.

We ask for the Board’s careful and sympathetic consideration of all the evidence of record used in rendering a fair and impartial decision. These issues do not supersede any issues previously submitted by the Applicant.”
Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Medical Summary from UNC Health Care Chapel Hill, NC (3 pages)
Letter from E_ S. F_, RN Renal Transplant Coordinator, UNC Health Care Comprehensive Transplant Center dated December 16, 2002
Letter from Applicant
Copy of DD Form 214
Copy of Navy Occupational/Training and Award History Documents (2 pages)

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     891114 - 900624  COG
         Active: USN                        None

 Period of Service Under Review :
Date of Enlistment: 900625               Date of Discharge: 950512

 Length of Service (years, months, days):

         Active: 04 07 11
         Inactive: None

 Age at Entry: 19                          Years Contracted: 4 (24 months extension)

 Education Level: 12                        AFQT: 35

 Highest Rate: DA

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: NOB*                 Behavior: NOB             OTA: NOB

 Military Decorations: None

 Unit/Campaign/Service Awards: NDSM

 Days of Unauthorized Absence: 74

*Not Observed

 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 :

911217:  Special Court Martial [trial dates 911217/920427].
         Charge I: violation of the UCMJ, Article 121: Larceny.
         Findings: to Charge I and specifications there under, guilty excepting the words “of a value of $298.00” and substituting therefore the words, “of some value.” Excepting also the words, “for a total value of $343.00.” Of the excepted words and figures, Not Guilty. Of the substituted words, Guilty.
         Sentence: Confinement for 30 days; and to be further confined until the fine is paid, but not more than 3 months in addition to the 30 days herein adjudged, forfeiture of $1000.00, reduction to E-1, Bad Conduct discharge.
         CA 940309: Sentence approved and ordered executed, except for bad conduct discharge.

911218:  Joined Naval Brig NORVA, for confinement.

920110:  Released from confinement and restored to full duty.

920129:  Applicant waived rights to clemency review

920302:  Report of Declaration of Deserter (NAVPERS 1600-3). Applicant declared a deserter on 920302 having been an unauthorized absentee since 0715, 920130 from TPU NORVA.

920416:  Report of Return of Deserter. Applicant surrendered onboard TPU NORVA 920415 (1200). Returned to military control 920415 (1200). Retained onboard for disciplinary action/disposition at TPU NORVA.

920419:  From confinement; to appellate leave.
950210:  NMCCMR: The findings of guilty and sentence, as approved on review, are affirmed.

950512:  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 19950512 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). 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. Relief is therefore denied.

The Applicant remains eligible for a personal appearance hearing, provided an application is received, at the NDRB, within 15 years from the date of discharge. The Applicant can provide additional documentation to support any claims of post-service accomplishments or any other evidence related to the applicant’s discharge at that time. 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 121.

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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