Search Decisions

Decision Text

NAVY | DRB | 2003_Navy | ND03-01068
Original file (ND03-01068.rtf) Auto-classification: Denied


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

ex-AZAR, USN
Docket No. ND03-01068

Applicant’s Request
The application for discharge review was received on 20030604. The Applicant requests the characterization of service received at the time of discharge be changed to honorable. The Applicant requests a documentary record review. The Applicant listed the Veterans of Foreign Wars as the representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20040429. 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

 Applicant’s issues, as stated on the application:

“1. I don’t know how to get the DD 214 form. I’ve written several times hoping you would help find it or refer me to the appropriate place to obtain a DD 214 form. Your reply will mean a lot to me.

Waiting to hear from you.”

Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Copy of DD Form 214
Letter from VFW

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     941212 - 950227  COG
         Active: None

 Period of Service Under Review :
Date of Enlistment: 950228               Date of Discharge: 010626

 Length of Service (years, months, days):

         Active: 03 05 17
         Inactive: None

 Age at Entry: 18                          Years Contracted: 4

 Education Level: 12                        AFQT: 43

 Highest Rate: AZAA

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 2.40 (5)    Behavior: 1.80 (5)                OTA: 2.17

 Military Decorations: None

 Unit/Campaign/Service Awards: NDSM, NATO, BATTLE “E”, SSDR (w/2*)

 Days of Unauthorized Absence: 1042

 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 :

010395:  Counseling: Advised of deficiency (fraudulent enlistment, failure to disclose dependent child, carrying a concealed firearm, and no license), notified of corrective actions and assistance available.

970106:  NJP for violation of UCMJ, Article 86 (2) Specifications: UA, violation of UCMJ Article 91 (3) Specifications: Willful disobedience of a petty officer.
         Award: Forfeiture of $75 per month for 2 months ($75.00 pay per month for one month suspended for 6 months), restriction and extra duty for 20 days, reduction to E-2 (Suspended for 6 months.) No indication of appeal in the record.

970626   Vacate suspension awarded at NJP on 970106 due to continued misconduct.

970626:  NJP for violation of UCMJ, Article 86: UA.
Award: Forfeiture of $200 per month for 1 month, restriction and extra duty for 20 days. No indication of appeal in the record.
980106:  NJP for violation of UCMJ, Article 91: Insubordinate conduct toward a chief petty officer and first class petty officer, violation of UCMJ Article 92 (4) Specifications: Willfully failing to obey an order.
 Award: Restriction and extra duty for 30 days, reduction to E-1(suspended for 6 months). No indication of appeal in the record.

 980807:  To pre-trial confinement
981002:  Special Court Martial [trial dates 980929 – 981002]
         Charge I: violation of the UCMJ, Article 90.
         Specification: Willful disobedience of a superior commissioned officer.
         Charge II: violation of the UCMJ, Article 116.
         Specification: Breach of peace.
         Charge III: violation of the UCMJ, Article 128.
         Specification: Assault upon a sentinel.
         Findings: to Charge I, II, and III, guilty.
         Sentence: CHL for 3 months, reduction to E-1, Bad Conduct discharge.
         CA 990512: Sentence approved and ordered executed, except for bad conduct discharge.
         SA: see SSPCMO.

981021:  From confinement.
010321:  NMCCCA: The findings of guilty and sentence, as approved on review,
         are affirmed.

010626:  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 20010626 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: If you desire a copy of your DD Form 214, you may contact the Commander, Naval Military Personnel Command, Pers-312, 5720 Integrity Drive, Millington, TN 38055.

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.

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 less than honorable discharge. 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. At this time, the Applicant has not submitted any documentation to mitigate his misconduct while on active duty. Relief denied.

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 90 [ Willful disobedience of a superior commissioned officer], Article 116 [Breach of peace], and Article 128 [Assault upon a sentinel] .

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      


Similar Decisions

  • NAVY | DRB | 2002_Navy | ND02-00105

    Original file (ND02-00105.rtf) Auto-classification: Denied

    The discharge shall remain: BAD CONDUCT/Convicted by special court martial, authority: NAVMILPERSMAN, Article 5815-010 (formerly 3640420).The NDRB did note an administrative error on the original DD Form 214. (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 to under honorable conditions on...

  • NAVY | DRB | 2004_Navy | ND04-00268

    Original file (ND04-00268.rtf) Auto-classification: Denied

    ND04-00268 Applicant’s Request The application for discharge review was received on 20031209. PART I - APPLICANT’S ISSUES AND DOCUMENTATION PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW Discussion The Applicant was discharged on 20000321 with a bad conduct discharge which was the sentence adjudged by a properly convened special court-martial.

  • NAVY | DRB | 2003_Navy | ND03-00173

    Original file (ND03-00173.rtf) Auto-classification: Denied

    (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,...

  • NAVY | DRB | 2003_Navy | ND03-00730

    Original file (ND03-00730.rtf) Auto-classification: Denied

    The Applicant requests the characterization of service received at the time of discharge be changed to general/under honorable conditions. Issue 1: In response to the Applicant's issue, relevant and material details stated in a court-martial specification are presumed by the NDRB to be established facts. 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...

  • NAVY | DRB | 2005_Navy | ND0500938

    Original file (ND0500938.rtf) Auto-classification: Denied

    PART I - APPLICANT’S ISSUES AND DOCUMENTATION Issues, as stated Applicant’s issues, as stated on the application: “Poor legal representation & lack of speedy trial.” Documentation Only the service record was were reviewed. After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, the Board found that the Applicant’s issues were insufficient to merit clemency (C).

  • NAVY | DRB | 2003_Navy | ND03-00997

    Original file (ND03-00997.rtf) Auto-classification: Denied

    PART I - APPLICANT’S ISSUES AND DOCUMENTATION 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...

  • NAVY | DRB | 2004_Navy | ND04-00629

    Original file (ND04-00629.rtf) Auto-classification: Denied

    PART I - APPLICANT’S ISSUES AND DOCUMENTATION After a thorough review of the Applicant’s record, issues submitted, and post service accomplishments, the Board determined that clemency was not warranted and that the sentence awarded the Applicant at his court-martial was appropriate for the offenses he committed. 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...

  • NAVY | DRB | 2005_Navy | ND0501447

    Original file (ND0501447.rtf) Auto-classification: Denied

    PART II - SUMMARY OF SERVICE Prior Service (component, dates of service, type of discharge): Inactive: None Active: None Period of Service Under Review :Date of Enlistment: 19940226 Date of Discharge: 20000725 Length of Service (years, months, days):Active: 06 01 02 (Does not exclude lost time.) After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, the Board found that the Applicant’s issues were insufficient to merit clemency (C). The...

  • NAVY | DRB | 2006_Navy | ND0600429

    Original file (ND0600429.rtf) Auto-classification: Denied

    PART I - APPLICANT’S ISSUES AND DOCUMENTATION Issues, as stated Applicant’s issues, as stated on the application: “ Respectfully request change of bad conduct discharge into an honorable discharge, also please change my separation code:jjd/901 and re-entry code of re4. 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 violations of the UCMJ, Articles 86 (Unauthorized...

  • NAVY | DRB | 2001_Navy | ND01-00565

    Original file (ND01-00565.rtf) Auto-classification: Denied

    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 (C and D). The applicant’s eighth issue states: “I have received treatment and ready to come back home in the navy.” The applicant failed to provide documentary evidence to support his sobriety and post service accomplishments. Evidence of continuing educational pursuits, an employment record, documentation of community...