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NAVY | DRB | 2004_Navy | ND04-00469
Original file (ND04-00469.rtf) Auto-classification: Denied


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

ex-ABEAR, USN
Docket No. ND04-00469

Applicant’s Request
The application for discharge review was received on 20040121. The Applicant requests the characterization of service received at the time of discharge be changed to general (under honorable conditions). The Applicant requested a documentary record review. The Applicant did not list a representative on DD Form 293. In the acknowledgement letter, the Applicant was informed that he was approaching the 15-year point for review by this Board and was encouraged to attend a personal appearance hearing in the Washington D.C. area. Applicant did not respond

 Decision

A documentary review was conducted in Washington, D.C. on 20050224. 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 3640420.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

 Applicant’s issues, as stated on the application:

1. “ I believe I was wrongfully discharged based on my age at the time of my misconduct in the U.S. Navy which I hope will be reviewed in good faith on my behalf and rectified to an reasonable discharge. My discharge was inequitable because it was based on one isolated incident in my career.”
Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant’s DD Form 214 (2)
Service Related Documents (18 pages)

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     870829 - 880221  COG
         Active: None

 Period of Service Under Review :
Date of Enlistment: 880222               Date of Discharge: 900321

 Length of Service (years, months, days):

         Active: 01 09 11
         Inactive: None

 Age at Entry: 18                          Years Contracted: 4

Education Level: 12                        AFQT: 41

 Highest Rate: ABEAA

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: NMA*                 Behavior: NMA             OTA: NMA

 Military Decorations: None

 Unit/Campaign/Service Awards: None

 Days of Unauthorized Absence: None

*No Marks made available for review

 Character, Narrative Reason, and Authority of Discharge (at time of issuance):

BAD CONDUCT/Convicted by special court martial, authority: NAVMILPERSMAN, Article 3640420.

 Chronological Listing of Significant Service Events :

890410:  Special Court Martial
         Charge I: violation of the UCMJ, Article 121, Specification: Steal one Kyocera 8mm camcorder of a value of about $1,197.00, the property of the U.S. Government.
         Findings: to Charge I and specification thereunder, guilty.
         Sentence: Confinement for 120 days, forfeiture of $400.00 pay per month for 4 months, reduction to E-1, Bad Conduct discharge.
         CA 890512: Sentence approved and ordered executed, except for bad conduct discharge.
        
890410:  Joined Naval Brig, Naval Station Norfolk, for confinement.

890728:  Released from confinement.
900321:  Applicant discharged with a Bad Conduct discharge per MILPERSMAN 364420 SPSCMONO 357-90 dated 90MAR21 [Extracted from DD Form 214].

Complete discharge package unavailable

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19900321 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). In the absence of a complete discharge package the Board presumed regularity in the conduct of governmental affairs (C).

Issue 1: 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. The Applicant states his discharge was based on one isolated incident with no other infractions. The Applicant’s service was marred by conviction by a special court-martial for violation of UCMJ Article 121. The Applicant’s conduct, which forms the primary basis for determining the character of his service, reflects his disobedience of the orders and directives which regulate good order and discipline in the naval service, and falls short of that required for a general (under honorable conditions) characterization of service. It must be noted that most Sailors serve honorably and well and therefore earn honorable discharges. In fairness to those Sailors, commanders and separation authorities are tasked to ensure that undeserving Sailors receive no higher characterization than is due. Relief denied.

The following if provided for the edification of the Applicant. The NDRB has no authority to provided additional review of this case since Applicant’s discharge occurred more than 15 years ago. The Applicant may, however, petition the Board for Correction of Naval Records (BCNR), 2 Navy Annex, Washington, DC 20370-5100, concerning a change in the characterization of naval service, if he desires further review of his case.

Pertinent Regulation/Law (at time of discharge)

 A . The Naval Military Personnel Manual, (NAVPERS 15560A), Change 9, effective 14 Dec 89 until 14 Aug 91, 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 (Larceny).

C. Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part II, 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 “ http://Boards.law.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:

                  Secretary of the Navy Council of Review Boards
                   Attn: Naval Discharge Review Board
                   720 Kennon Street SE Rm 309
                  Washington Navy Yard DC 20374-5023

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