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NAVY | DRB | 2004_Navy | ND04-01015
Original file (ND04-01015.rtf) Auto-classification: Denied


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

ex-MSSR, USNR
Docket No. ND04-01015

Applicant’s Request
The application for discharge review was received on 20040610. The Applicant requests the characterization of service received at the time of discharge be changed to 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 20041222. 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. “Would like my discharge upgraded to general/under honorable conditions. The discharge I received was not appropriate because during my enlistment I requested drug and alcohol treatment 3 different times and was turned down. I know going AWOL 3 different times was the wrong choice but I feel if I was given treatment back then my navy career would have turned out much different. Thank you for your time.”

 Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Copies of DD Form 214 (2)
Letter from Applicant dated June 25, 2004
Letter from D_ W_, Corrections Social Worker, State of Wisconsin Department of Corrections dated June 22, 2004

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: 870625               Date of Discharge: 900823

 Length of Service (years, months, days):

         Active: 03 01 29         (Does not exclude lost time)
         Inactive: 00 04 15

 Age at Entry: 18                          Years Contracted: 8

 Education Level: 12                        AFQT: 26

 Highest Rate: MSSR

 Final Enlisted Performance Evaluation Averages (number of marks):

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

 Military Decorations: None

 Unit/Campaign/Service Awards: None

 Days of Unauthorized Absence: 277

 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 :

871109:  Ordered to active duty for 36 months under the Active Mariner program.

 880902:  Report of Declaration of Deserter (NAVPERS 1600-3). Applicant declared a deserter on 880817 having been an unauthorized absentee since 1800, 880718 from USS THEODORE ROOSEVELT (CVN-71).

881025:  Report of Return of Deserter. Applicant apprehended by civil authorities on 881020 (0905) at Milwaukee, WI. Returned to military control 881020 (1035) at DIP, WASHINGTON DC. Transferred to USS THEODORE ROOSEVELT (CVN-71) at 1530, 881024 and retained onboard for disciplinary action disposition.

881116:  Summary Court-Martial.
         Charge I: violation of the UCMJ, Article 86: UA from 880718 to 881020 (92 days/A).
Charge II: violation of the UCMJ, Article 87: Missing movement on 880720.
         Finding: to Charge I and the specification there under, guilty. To Charge II and the specification there under, guilty.
         Sentence: Forfeiture of $446.00, restriction for 60 days.
         CA action 881116: Sentence approved and ordered executed.

890117:  Report of Declaration of Deserter (NAVPERS 1600-3). Applicant declared a deserter on 890116 having been an unauthorized absentee since 0500, 881217 from USS THEODORE ROOSEVELT (CVN-71).

890705:  Pretrial restriction from 890705 to 890821.

890706:  Report of Return of Deserter. Applicant surrendered to military authority 1335, 890705 at TPU GLAKES, IL. Returned to military control 1335, 890705 at TPU GLAKES, IL. Transferred to USS THEODORE ROOSEVELT (CVN-71) to report no later than 2400, 890706.

890821:  Special Court-Martial [trial dates 890821 & 890831].
         Charge I: violation of the UCMJ, Article 86: Unauthorized absence 881217 – 890619 (185 days/S).
Charge II: violation of the UCMJ, Article 87: Missing ship’s movement on 881230.
          Findings: to Charge I and specification 1 there under, guilty. To Charge II and specification 1 there under, guilty.
         Sentence: Forfeiture of $350.00 pay per month for 2 months, confinement for 75 days, bad conduct discharge.
         CA 891012: Sentence approved and, except for that part of the sentence extending to a bad conduct discharge will be executed.
890821:  To confinement.

891022:  Released from confinement and restored to full duty status.

 891117:  NMCCMR: The findings of guilty and sentence, as approved on review, are affirmed.
900721:  COMA: Request for appeal denied.

900823:  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 19900823 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. With respect to a discharge adjudged by a court-martial case, the action of the NDRB is restricted to upgrades based on clemency (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. Despite the Applicant’s claims that he was unfairly denied substance abuse treatment, the NDRB found the Applicant’s service record absent of any mitigating or extenuating factors sufficient to offset the seriousness of the offenses for which the discharge was awarded. Relief denied.
The Applicant is reminded that he remains eligible for a personal appearance hearing, provided an application is received at the NDRB within 15 years from the date of his 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 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 86- unauthorized absence for more than 30 days.

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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