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NAVY | DRB | 2004_Navy | ND04-00009
Original file (ND04-00009.rtf) Auto-classification: Denied


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

ex-AOAR, USN
Docket No. ND04-00009

Applicant’s Request
The application for discharge review was received on 20031001. The Applicant requests the characterization of service received at the time of discharge be changed to entry level separation or uncharacterized. The Applicant requests a personal appearance hearing discharge review before the Board in the Washington National Capital Region. The Applicant did not list any representative on the DD Form 293. In the acknowledgement letter to the Applicant, he was informed that the Naval Discharge Review Board first conducts a documentary review prior to any personal appearance hearing.

Decision

A documentary discharge review was conducted in Washington, D.C. on YYYYMMDD. 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/COURT MARTIAL CONVICTION, authority: NAVMILPERSMAN, Article 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:
None

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     901228 - 910224  COG
                                             890330 - 890519  COG
         Active: USN                        None

 Period of Service Under Review :
Date of Enlistment: 910225               Date of Discharge: 950210

 Length of Service (years, months, days):

         Active: 03 02 06
         Inactive: None

 Age at Entry: 20                          Years Contracted: 4

Education Level: 12                        AFQT: 45

 Highest Rate: AOAR

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.00 (1)    Behavior: 3.00 (1)                OTA: 3.20

 Military Decorations: None

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

 Days of Unauthorized Absence: 222

 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 :

911016:  Report of Declaration of Deserter (NAVPERS 1600-3). Applicant declared a deserter on 911016 having been an unauthorized absentee since 0630, 910916 from USS DWIGHT D. EISENHOWER (CVN-69).

911023:  Applicant surrendered to Naval Reserve Center Charleston, WV. Returned to military control 911023 (0800). Transferred to TPU NAVSTA, NORVA to report NLT 2400, 911023.

920127:  Summary Court-Martial.
         Charge I: violation of the UCMJ, Article 86: (2 Specifications), Specification 1: Unauthorized absence from 910823-910903; Specification 2: Unauthorized absence from 910916-911023. Charge II: violation of the UCMJ, Article 87: Missing ship’s movement on 910926.
         Finding: to Charge I and the specification 1 and 2 thereunder, guilty. To Charge II and the specification thereunder, guilty.
         Sentence: Forfeiture of $502.00, 3 days bread & water, restriction for 48 days.
         CA action 920118: Approved findings and sentence.

920622:  Retention Warning: Advised of deficiency (Pattern of misconduct evidenced by violation of the UCMJ, Article 134: Disorderly conduct on 920614), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

920622:  NJP for violation of UCMJ, Article 134: Disorderly conduct on 920614.
         Award: Forfeiture of $392.00 pay per month for 1 month, restriction and extra duty for 30 days. No indication of appeal in the record.

930318:  Report of Declaration of Deserter (NAVPERS 1600-3). Applicant declared a deserter on 930318 having been an unauthorized absentee since 0630, 930216 from USS DWIGHT D. EISENHOWER (CVN-69).

930810:  Applicant apprehended by civil authority at at Beckley, WV. Returned to military control 930810 (1717). Pretrial confinement from 930810 to 931008 (59 days).

931008:  Special Court Martial [trial dates 931008]
         Charge I: violation of the UCMJ, Article 86.
         Specification 1: Unauthorized absence from his unit, USS DWIGHT D. EISENHOWER (CVN-69), from 930216 until apprehended on 930810, [175 days/A.]
         Specification 2:
         Findings: to Charge I and specification thereunder, guilty.
         Sentence: Confinement for 60 days, forfeiture of $500.00 pay per month for 2 months, Bad Conduct discharge, reduction to AOAR.
         CA 940509: Sentence approved and, except for bad conduct discharge, will be executed.
        
941128:  NMCCMR: The findings of guilty and sentence, as approved on review, are affirmed.
950210:  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 in absentia 19950210 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 introduced no decisional issues for consideration by the Board.

 The Applicant’s case was considered under the pertinent standards of equity to determine if any factors in this particular case merited clemency. The NDRB found the evidence of record did not contain sufficient mitigating or extenuating factors to offset the seriousness of the offenses for which the discharge was awarded. Further, the Applicant’s request for an entry-level/uncharacterized separation is without merit as the Applicant was discharged after over three years of service. Relief denied.

The NDRB, under its responsibility to examine the propriety and equity of an Applicant’s discharge, is authorized to change the character of service and/or the reason for discharge if such change is warranted. There is no evidence of impropriety or inequity in the Applicant’s discharge. The Applicant admitted guilt at courts-martial and was in unauthorized absence status for 222 days. 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 is not warranted.

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 documentation to support any claims of post-service accomplishments or any other evidence related to his 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 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.

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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