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NAVY | DRB | 2004_Navy | ND04-00268
Original file (ND04-00268.rtf) Auto-classification: Denied


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


ex-ADAR, USN
Docket No. ND04-00268

Applicant’s Request
The application for discharge review was received on 20031209. The Applicant requests the characterization of service received at the time of discharge be changed to honorable. The Applicant requests a personal appearance hearing discharge review before a traveling panel closest to San Diego, CA. The Applicant did not list any representative on the DD Form 293. In the acknowledgement letter, the Applicant was informed that the Naval Discharge Review Board (NDRB) does not travel; all hearing are held in the Washington DC area. The NDRB also advised that the board first conducts a documentary review prior to any personal appearance hearing.

Decision

A documentary review was conducted in Washington, D.C. on 20040728. 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 learned a great deal from this experience, now I want to put it in the past and move on with my life to better things. I’m currently enrolled in school, in search of a better future by taking college course. I am volunteering for does that need help. If possible to start all over again I would do things the right way instead of the wrong way. Thank you for the experience it has help me realize how life should be. Again thank you.”

Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Student Report Card, Remington College, 7/21/03 –10/9/03

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     960918 - 961203  COG
          Active: USN                        None
Period of Service Under Review :
Date of Enlistment: 961016               Date of Discharge: 000321

 Length of Service (years, months, days):
         Active: 02 02 03
          Inactive: None

 Age at Entry: 22                          Years Contracted: 4

Education Level: 12                        AFQT: 36

 Highest Rate: ADAA
Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 2.50(2)     Behavior: 2.00(2)                 OTA: 2.25(2)
Military Decorations: None

 Unit/Campaign/Service Awards: None
Days of Unauthorized Absence: 1

 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 :

980206:  NJP for violation of UCMJ, Article 86: Failure to go to appointed place of duty, 5 specifications, violation of UCMJ Article 91: insubordinate conduct, violation of UCMJ Article 92: failure to obey an order or regulation, violation of UCMJ Article 113: misbehavior of a sentinel or lookout.
         Award: Forfeiture of ½ month’s pay per month for 2 months (suspended for 2 months), restriction for 45 days (suspended for 2 months), reduction to E-1. No indication of appeal in the record.
980225:  Retention Warning: Advised of deficiency (UA, failed to obey lawful order, etc.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

980227:  NJP for violation of UCMJ Article 86: absent without leave, violation of UCMJ Article 91: insubordinate conduct.
          Award: Suspension of punishment of NJP of 980206 was vacated.
980617:  Special Court Martial [trial dates 981027 – 981029]
          Charge I: violation of the UCMJ, Article 91,
         Specification: On or about 8 March 1998, willfully disobey DC2 S_ D_’s order to return to the sleeping area.
          Findings: to Charge I and the sole specification thereunder, guilty.
         Charge II: violation of the UCMJ, Article 95,
          Specification: On or about 8 March 1998, resist apprehension by AD2 G_ and DC2 D_.
          Findings: to Charge II and the sole specification thereunder, guilty.
         Charge III: violation of the UCMJ, Article 108,
          Specification 1: On or about 8 March 1998, willfully destroy a bulletin board, military property of about $285.
         Specification 2: On or about 8 March 1998, willfully destroy a window, military property of about $285.
         Findings: to Charge III and specifications 1 and 2 thereunder, guilty.
         Additional Charge: violation of the UCMJ, Article 86
         Specification: On or about 31 May 1998, absent himself until 1 June 1998.
         Findings: to the Additional Charge and the sole specification thereunder, guilty.
         Sentence: forfeiture of $570 per month for 1 months, Bad Conduct discharge.
         CA 990208: Sentence approved and ordered executed, except for bad conduct discharge.

991008:  NMCCCA: The findings of guilty and sentence, as approved on review,
         are affirmed.
000303:  USCAAF: Request for appeal denied .

000321:  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 20000321 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: Relevant and material facts stated in a court-martial specification are presumed by the NDRB to be established facts. With respect to a discharge adjudged by a court-martial case, the action of the NDRB is restricted to upgrades based on clemency. Clemency is an act of leniency that reduces the severity of the punishment imposed. After a thorough review of the Applicant’s record, issues submitted, and post service accomplishments, the Board determined that clemency was not warranted. Relief 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 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. 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 91, disobeying a petty officer, Article 95, resisting apprehension, or Article 108, willful destruction of government 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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