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NAVY | DRB | 2003_Navy | ND03-00997
Original file (ND03-00997.rtf) Auto-classification: Denied


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

, ex-YNSR, USN
Docket No. ND03-00997

Applicant’s Request
The application for discharge review was received on 20030527. The Applicant requests the characterization of service received at the time of discharge be changed to honorable or general/under honorable conditions. The Applicant requests a documentary record review. The Applicant did not list any representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20040423. 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

Issues, as stated

 No issues were submitted by the Applicant.

Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Copies of DD Form 214 (2)
DD Form 149
Letter from D. L. K___, Board for Correction of Naval Records to MS K____ S. J___

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     970530 - 970729  COG
         Active: USN                        None

 Period of Service Under Review :
Date of Enlistment: 970730               Date of Discharge: 020626

 Length of Service (years, months, days):

         Active: 03 09 20
         Inactive: None

 Age at Entry: 25                          Years Contracted: 4 (5 months extension)

 Education Level: 12                        AFQT: 32

 Highest Rate: YNSN

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 4.00 (3)    Behavior: 3.00 (3)                OTA: 3.27

 Military Decorations: None

 Unit/Campaign/Service Awards: LOC, GCM

 Days of Unauthorized Absence: None

 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 :

010125:  Retention Warning: Advised of deficiency (Non-compliance with the Department of the Navy’s Family Care Plan Certificate and worldwide availability.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

010416:  Special Court Martial [trial dates 010416 – 010516]
         Charge I: violation of the UCMJ, Article 89: On or about 010207, behave herself with disrespect toward CDR B___, USN, her superior commissioned officer. Charge II: violation of the UCMJ, Article 109: (4 specifications), Specification 1: On or about 010206, willfully and wrongfully damage by scratching with a sharp object, a 1999 Toyota Tacoma Truck, the amount of damage being about $729.00, the property of YNC T___, USN, Specification 2: On or about 001205, willfully and wrongfully damage by scratching with a sharp object, a 1999 Toyota Tacoma Truck, the amount of damage being about $200.00, the property of YNC T____, USN, Specification 3: On or about 001116, willfully and wrongfully damage by scratching with a sharp object, a 2000 Lexus RX300, the amount of damage being about $757.00, the property of LT P_____, USN , Specification 4: On or about 010209, willfully and wrongfully damage by scratching with a sharp object, a 1999 Mazda Miata MX-5, the amount of damage being about $320.00, the property of CDR B____, USN. Charge III: violation of the UCMJ, Article 134: (2 specifications), Specification 1: On or about 010207, wrongfully communicate to YN2 B____, USN and AZAN K___, USN, a threat against CDR B____, USN, Specification 2: On or about 010201, wrongfully communicate to YN3 L____, USN a threat to injure the reputation of LT P____, USN and YNC T____, USN.
         Findings: to Charge I and specifications thereunder, guilty. To Charge II and specification 1 thru 4 thereunder, guilty. To Charge III and specification 1 thereunder, withdrawn, specification 2 under Charge III, guilty.
         Sentence: Confinement for 90 days, Bad Conduct discharge.
         CA 010515: Sentence approved and ordered executed, except for that part of the sentence extending to a bad conduct discharge, will be executed, but the execution of that part of the sentence adjudging confinement in excess of 30 days is suspended for a period of 6 months from the date the sentence was adjudged, at which time, unless sooner vacated, the suspended portion will be remitted without further action. The execution of that part of the sentence extending to automatic forfeiture of two-thirds pay pursuant to Article 58b, UCMJ, was deferred from the date the forfeiture became effective until the date of this action, and the deferment is rescinded this date. The execution of that part of the sentence extending to automatic forfeiture of two-thirds pay pursuant to Article 58b, UCMJ, is hereby waived for a period of 6 months from the date of this action and will be paid to M____ J. T___ (A___) for the benefit of T____ J___, the accused’s lawful dependent. The sentence as approved and partially suspended, deferred and waived in accordance with the provision of the pretrial. Pursuant to the pretrial agreement, the service of that portion of the confinement to be suspended was deferred on 9 June 2001, and the deferment is rescinded this date. The accused will be reduced to pay grade E-1 in accordance with Article 58a, Uniform Code of Military Justice.

010516:  Joined the Naval Waterfront Brig, Jacksonville, FL, for confinement.

010609:  Released from confinement

010612:  Placed on appellate leave.
020227:  NMCCCA: The findings of guilty and sentence, as approved on review,
         are affirmed.

020626:  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 20020626 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).

The Applicant did not introduce any decisional issues for the Board’s consideration. T he action of the NDRB is restricted to upgrades based upon clemency when a discharge is adjudged by a court-martial case tried under the Uniform Code of Military Justice, (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.

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 civilian life, subsequent to leaving the service. However, 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. Verifiable proof of any post-service accomplishments must be provided in order for the Applicant to claim post-service conduct and behavior as a reason to upgrade a court-martial conviction on the basis of clemency. Evidence of continuing educational pursuits, a positive employment record, and certification of community service and non-involvement with civil authorities are examples of verifiable proof that can be submitted.

The Applicant is reminded that she remains eligible for a personal appearance hearing, provided an application is received at the NDRB within 15 years from the date of her discharge. 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 89, disrespect to a commissioned officer, and Article 109 ,willfully and wrongfully damage of property.

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 DC 20374-5023      


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