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NAVY | DRB | 2004_Navy | ND04-01041
Original file (ND04-01041.rtf) Auto-classification: Denied


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


FOR OFFICIAL USE ONLY

ex-SR, USNR
Docket No. ND04-01041

Applicant’s Request
The application for discharge review was received on 20040607. 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 the Board in the Washington, D.C. Metropolitan Area. The Applicant listed American Legion as the representative on the DD Form 293.

Decision

A personal appearance hearing discharge review was conducted in Washington, D.C. on 20051031. After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, the Board determined that clemency was not warranted and that the characterization of discharge was appropriate. 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
Issues submitted by Applicant’s representative (AMERICAN LEGION):

1. “(Equity Issue) Pursuant to 10 USC 874 (b) (UCMJ, Article 74) and in accordance with SECNAVINST 5420.174D, Part IV, Paragraph 403 m (7), this former member requests the Board’s clemency relief with an up-grade of his characterization of service to honorable on the basis of his post-service conduct.”

Issues submitted by the Applicant’s American Legion representative at the time of the Applicants personal appearance hearing supersede those submitted originally on Form DD-293.

Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Reference Letter from V_ L. H_, dated June 29, 2005
Reference Letter from M_ P_, dated March 8, 2002
Reference Letter from L_ G_, dated March 8, 2002 (2 pages)
Reference Letter from J_ H_, undated (5 pages)
Letter of Medical Care, from Dr. T_, dated February 21, 2003
Letter of Medical Care, from I. M_, undated
Letter of Reference from F_ C_, dated February 28, 2002
Letter of Reference from P_ R_, dated March 6, 2002
Letter of Reference from D_ W_, dated March 7, 2002
Letter of Residence from D_ M_, dated February 21, 2002
Letter of Reference from Chief Apostle H_ A. S_ and Apostle E_ S_, unsigned, dated March 12, 2002
Letter of Reference from D_ B_, dated March 11, 2002
Letter of Reference from M_ T. C_, dated March 10, 2002
Medical Record Progress Notes, dated January 24, 2001
Medical Record Progress Notes, dated January 17, 2001 (2 pages)
Mental Health Release Form, dated January 30, 2001
Letter of Medical Care from Dr. F_ T_, dated January 2, 2003
Loan Rehabilitation Program Terms Letter, dated February 27, 2005 (3 pages)
Letter of Homelessness from J_ K_, dated September 14, 2001
Initial Notice of Annual Recertification, dated March 1, 2005
Letter of Reference from M_ A. E_, MA, dated May 30, 2003
Warning About Additional Household Members, dated March 1, 2005
Medical Record, VA Medical Center, dated December 12, 2003
Reference Letter from R_ C_, SCM, dated December 29, 2004
Voucher Program Lease, dated March 1, 2005
Drawing: “Being a father is a privilege”

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: 861125               Date of Discharge: 930222

 Length of Service (years, months, days):

         Active: 05 07 29 (Does not exclude lost time)
         Inactive: None

 Age at Entry: 20                          Years Contracted: 8

 Education Level: 12                        AFQT: 27

 Highest Rate: SA

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 2.00 (2)             Behavior: 2.60 (3)                OTA: 2.10

 Military Decorations: None

 Unit/Campaign/Service Awards: SSDR

 Days of Unauthorized Absence: 57

 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 :

870624:  Ordered to active duty for 36 months under the Active Mariner program.

 871106:  NJP for violation of UCMJ, Article 92: Failure to obey a lawful order/regulation on 871010; violation of UCMJ Article 86: UA from appointed place of duty on 871031.
         Award: Forfeiture of $153.00 pay per month for 1 month, restriction for 14 days (suspended for 6 months), extra duty for 14 days. No indication of appeal in the record.
871106:  Retention Warning: Advised of deficiency (Article 92: SNM violated a lawful written order by being at the E-Club while in a duty status, on or about 871011; Article 86: SNM was UA from 1600 until 1610 on or about 871031), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

880413:  NJP for violation of UCMJ, Article 86: UA from 2200 to 2213, 880404.
         Award: Restriction for 10 days. No indication of appeal in the record.

880413:  Retention Warning: Advised of deficiency (Violation of UCMJ, Article 86: UA from 2200 to 2213, 880404), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

880623:  NJP for violation of UCMJ, Article 86: UA from 2200, 880515 to 1455, 880606 (22days/S); violation of UCMJ, Article 87: Through design missed ship’s movement 880517.
         Award: Forfeiture of $335.00 pay per month for 2 months, restriction and extra duty for 45 days, reduction to E-1 (suspended for 6 months). No indication of appeal in the record.

890317:  NJP for violation of UCMJ, Article 86: UA from 0600, 881222 to 1100, 881227 (5days/S); violation of UCMJ, Article 90: Willfully disobeyed a lawful order from an Officer to report to sick call on 890203; and willfully disobeyed a lawful order from the Executive Officer to provide a urine sample on 890208.
         Award: Forfeiture of $200.00 pay per month for 1 month (suspended for 90 days), restriction and extra duty for 30 days, reduction to E-1 (suspended for 90 days). No indication of appeal in the record.

890709:  NJP for violation of UCMJ, Article 92: Willfully dereliction of duty by failing to remain awake during lookout on 890716.
         Award: Confinement on Bread and Water for 3 days. No indication of appeal in the record.

890717:  NJP for violation of UCMJ, Article 90: Willfully disobey a lawful command.
         Award: Forfeiture of $250.00 pay per month for 1 month (suspended for 6 months), reduction to E-1. No indication of appeal in the record.

890809:  Suspended punishment of forfeiture of $250.00 pay per month awarded at CO’s NJP held on 890717 is hereby vacated due to continued misconduct.

900304:  NJP for violation of UCMJ, Article 86: UA from 0700, 900127 to 1700, 900127, UA from 900214 to 900220 (6days/S) and UA from 900224 to 900226 (2days/S).
         Award: Forfeiture of $100.00 pay per month for 2 months, restriction and extra duty for 30 days. No indication of appeal in the record.

900314:  NJP for violation of UCMJ, Article 86 (4 Specifications): Failure to go to appointed place of duty, to wit: Restricted Men’s Muster on 1530, 900307, 2130, 900307, 1230, 900308, and 0630, 900310.
         Award: Confinement on Bread and Water for 3 days. No indication of appeal in the record.

900405:  NJP for violation of UCMJ, Article 86 (3 Specifications): Missing restricted men’s muster on the hangar bay at 0630, 900319, 0630, 900320, and 1530, 900324; and without authority go from his place of duty at 1900, 900330.
         Award: Forfeiture of $100.00 pay per month for 2 months, restriction and extra duty for 20 days. No indication of appeal in the record.

900523:  Pre-trial restriction.

900608:  Applicant involuntarily retained for the purpose of the completion of disciplinary action (Applicant initialed, but refused to sign).

900710:  Released from pre-trial restriction.

900710:  NJP for violation of UCMJ, Article 86 (21 specifications): UA from pre-trial restriction muster.
         Award: Forfeiture of $362.00 pay per month for 2 months (forfeitures of 1 month suspended for 6 months), restriction and extra duty for 10 days. No indication of appeal in the record.
900731:  Special Court Martial:
         Charge I: violation of the UCMJ, Article 86, (16 Specifications);
         Specification 1: Failure to go at the time prescribed to his appointed place of duty, to wit: Restricted Men’s Muster at the hangar bay at 1230, 900406;
Specification 2: Failure to go at the time prescribed to his appointed place of duty, to wit: Restricted Men’s Muster at the hangar bay at 1230, 900407;
Specification 3: Failure to go at the time prescribed to his appointed place of duty, to wit: Restricted Men’s Muster at the hangar bay at 1530, 900411;
Specification 4: Failure to go at the time prescribed to his appointed place of duty, to wit: Restricted Men’s Muster at the hangar bay at 1230, 900412;
Specification 5: Failure to go at the time prescribed to his appointed place of duty, to wit: Restricted Men’s Muster at the hangar bay at 0630, 900416;
Specification 6: UA from unit from 0630 to 0700, 900516;
Specification 7: UA from unit from 0630 to 0700, 900517;
Specification 8: UA from unit from 0630 to 1230, 900521;
Specification 9: Failure to go at the time prescribed to his appointed place of duty, to wit: Restricted Men’s Muster at the hangar bar at 1530, 900521;
Specification 10: Failure to go at the time prescribed to his appointed place of duty, to wit: Restricted Men s Muster at the hangar bay at 0630, 900524;
Specification 11: Failure to go at the time prescribed to his appointed place of duty, to wit: Restricted Men’s Muster at the hangar bay at 1230, 900524;
Specification 12: Failure to go at the time prescribed to his appointed place of duty, to wit: Restricted Men’s Muster at the hangar bay at 1500, 900524;
Specification 13: Failure to go at the time prescribed to his appointed place of duty, to wit: Restricted Men’s Muster at the hangar bay at 1830, 900524;
Specification 14: Failure to go at the time prescribed to his appointed place of duty, to wit: Restricted Men’s Muster at the hangar bay at 0630, 900527;
Specification 15: Failure to go at the time prescribed to his appointed place of duty, to wit: Restricted Men’s Muster at the hangar bay at 1230, 900527;
Specification 16: Failure to go at the time prescribed to his appointed place of duty, to wit: Restricted Men’s Muster at the hangar bay at 0630, 900528.
Charge II: violation of UCMJ, Article 92: Violation a lawful general regulation by wrongfully possessing two U.S. Armed Forces Identification Cards.
Findings: to Charge I and specifications 1 through 5 thereunder, guilty; to Charge I specification 6, guilty excepting the numeral 0730, substituting therefore the number 0700 of the excepted numeral, Not Guilty, of the substituted numeral, Guilty of specification as substituted, Guilty. To Charge I specification 7 thereunder, guilty. To Charge I and specifications 8, 9 and 10 thereunder, not guilty. To Charge I specifications 11 through 16 thereunder, guilty. To Charge II and specification thereunder, guilty.
Sentence: Confinement for 60 days, forfeiture of $200.00 pay per month for 3 months, Bad Conduct discharge.
CA 910209: Sentence approved and ordered executed, except for bad conduct discharge
900731:  Joined the Navy Brig, Naval Station, Norfolk, Virginia, for confinement.

900918:  Released from confinement and restored to full duty.

 901012:  Unauthorized absence from TPU NORVA 2330, 901012 until 0715, 901013 (7 hours, 45 minutes/Surrendered).
901013:  Unauthorized absence from TPU NORVA 1300, 901013 until 1405, 901013 (1 hour, 5 minutes /Surrendered).
901026:  NJP for violation of UCMJ, Article 92: Failure to obey order or regulation, having knowledge of a lawful order issued by GSEC K_ to wit: PARA 4, C-WING Rules and regulations DTD 901004, an order which it was his duty to obey, did onboard TPU NORVA, on or about 2330, 901012, fail to obey the same; Specification 2: having knowledge of a lawful order issued by GSEC K_ to wit: PARA 4, C-WING Rules and Regulations DTD 901004, an order which it was his duty to obey, did onboard TPU NORVA, on or about 1405, 901013, fail to obey the same; Specification 3: Having knowledge of a lawful order issued by SM1 L_ to get out of his rack, and order which it was his duty to obey, did onboard TPU NORVA, on or about 0715, 901013, fail to obey the same.
 Award: Forfeiture of $462.75 pay per month for 1 month, restriction to Nimitz Hall for 15 days, extra duty for 15 days. No indication of appeal in the record.
910111:  NJP for violation of UCMJ, Article 86: UA from TPU NORVA 0715, 901121 to 1500, 901213 (22 days), violation of UCMJ, Article 92: Failure to obey an order or regulation issued by BT2 D_ to leave the Club at P-87, NAVSTA NORVA on or about 2015, 901116, failure to obey the same, violation of UCMJ, Article 95 : Resistance, Breach of Arrest and Escape, did onboard TPU NORVA, on or about 2109, 901116 escape from custody of DC2 N_, a person authorized to apprehend the accused.
 Award: Restriction to Nimitz Hall for 30 days (suspended for 30 days), extra duty for 45 days. No indication of appeal in the record.
910503:  NC&PB clemency not granted; restoration denied.
910705:  NMCCMR: The findings of guilty and sentence, as approved on review, are affirmed.
911212:  Appellate review complete.

 930222:  SSPCMO: Article 71c, UCMJ, having been complied with, bad conduct discharge ordered executed.
030722:  NDRB documentary record review Docket Number ND02-01105 conducted. Determination: discharge proper and equitable; relief not warranted.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19930222 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).

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. The Applicant’s service was marred by a total of twelve nonjudicial punishment proceedings and one special court-martial conviction for violations of UCMJ Article 86, unauthorized absence, Article 90, willfully disobeying a superior commissioned officer, Article 92, failure to obey order or regulation, and Article 95, resistance, flight, breach of arrest, and escape. The Board also noted that the Applicant’s misconduct was further aggravated by the fact that two of his nonjudicial punishments occurred after he was convicted by special court-martial and sentenced to a bad conduct discharge. 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. Relief denied.

The NDRB is authorized to consider post-service factors in the recharacterization of a discharge to the extent such matters provide a basis for a more thorough understanding of the Applicant’s performance and conduct during the period of service under review. Examples of documentation that could be provided to the Board include proof of educational pursuits, verifiable employment records, documentation of community service, and certification of non-involvement with civil authorities. The Board received and considered all of the Applicant’s submissions, including his many letters of reference, his evidence of psychiatric care, and the testimony of his wife. This evidence was offset by the Applicant’s admissions of continued post-service misconduct resulting in civilian convictions during his sworn testimony. After careful consideration, the Board concluded the Applicant’s post-service achievements have been insufficient to mitigate his misconduct while in the Naval service. Relief denied.

 The following if provided for the edification of the Applicant. The Applicant has exhausted his opportunities for review by the NDRB. 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 . Naval Military Personnel Manual, (NAVPERS 15560C), effective 15 Aug 91 until 04 Mar 93, 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 92, failure to obey order or regulation.



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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