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NAVY | DRB | 2005_Navy | ND0500938
Original file (ND0500938.rtf) Auto-classification: Denied


DEPARTMENT OF THE NAVY
NAVAL DISCHARGE REVIEW BOARD (NDRB)
 DISCHARGE REVIEW
DECISIONAL DOCUMENT
FOR OFFICIAL USE ONLY

ex-YNSR, USN
Docket No. ND05-00938

Applicant’s Request
The application for discharge review was received on 20050511. The Applicant requests the Discharge Characterization of Service received at the time of discharge be changed to general (under honorable conditions). The Applicant requests a documentary record discharge review. The Applicant did not designate a representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20051117. 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 as a bad conduct discharge by reason of court-martial conviction.




 PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

 Applicant’s issues, as stated on the application:

“Poor legal representation & lack of speedy trial.”

 Documentation
Only the service record was were reviewed. The Applicant did not provide additional documentation for the Board’s consideration.

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     19911227 – 19920812               COG
         Active: None

 Period of Service Under Review :
Date of Enlistment: 19920813             Date of Discharge: 19991217

 Length of Service (years, months, days):

         Active: 07 04 04 (Does not exclude lost time.)
         Inactive: None

 Time Lost During This Period (days):
         Unauthorized absence:    None
         Confinement:                       111 days [Extracted from the DD-214].

 Age at Entry: 18

Years Contracted: 4 (21 month extension)

 Education Level: 12                                 AFQT: 69

 Highest Rate: YN3

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.8 (4)              Behavior: 3.9 (4)                 OTA: 3 .8 4.0 scale
                  3.25 (4)                          2.50 (4)                          3.01 5.0 scale

 Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214): National Defense Service Medal, Coast Guard Special Operations Service Ribbon, Coast Guard Unit Commendation, Sea Service Deployment Ribbon (2 nd ), Humanitarian Service Medal, NATO Medal, Meritorious Unit Commendation, Armed Forces Service Medal, Navy and Marine Corps Achievement Medal, First Good Conduct Award, Letter of Commendation.


Character, Narrative Reason, and Authority of Discharge (at time of issuance):
BAD CONDUCT/COURT MARTIAL CONVICTION, authority: NAVMILPERSMAN, Article 5815-010 (formerly 3640420).
Chronological Listing of Significant Service Events :

961015:  NJP for violation of UCMJ, Article 91: Willful disobedience of a petty officer on 10 October 1996.
 Violation of UCMJ, Article 134: (3 Specifications), Communicating indecent language on 28 August and 9 September 1996.
          Award: Reduction to E-3 (suspended for 6 months), restriction and extra duty for 14 days. No indication of appeal in the record.

961017:  Retention Warning: Advised of deficiency (Use of disrespectful, vulgar and profane language under service-discrediting circumstances, which resulted in punishment under the UCMJ.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

980707:  Special Court Martial.
         Charge I: violation of the UCMJ, Article 120.
         Specification: That at the Bachelors Enlisted Quarters, Building 1452, MOD 324A, Naval Air Station, Patuxent River, Maryland, on diverse occasions during the period of 15 March 1997 to 31 May 1997, commit the offense of carnal knowledge with A_ L. A_.
         Charge II: violation of UMCJ, Article 125, (2 Specifications).
         Specification 1: That at the Days Inn, 60 Main Street, Lexington Park, Maryland, and did at the Bachelors Enlisted Quarters, Building 1452, MOD 324A, Naval Air Station, Patuxent River, Maryland, during the period of 15 March 1997 to 31 May 1997, commit sodomy with A_ L. A_, a female under 16 years of age, by placing his penis in her mouth.
 Specification 2: That at the Days Inn, 60 Main Street, Lexington Park, Maryland, and did at the Bachelors Enlisted Quarters, Building 1452, MOD 324A, Naval Air Station, Patuxent River, Maryland, during the period of 15 March 1997 to 31 May 1997, commit sodomy with A_ L. A_, a female under 16 years of age, by placing his mouth on her vagina.
          Charge III: violation of UCMJ, Article 134.
 Specification: That at the Days Inn, 60 Main Street, Lexington Park, Maryland, and did at the Bachelors Enlisted Quarters, Building 1452, MOD 324A, Naval Air Station, Patuxent River, Maryland, during the period of 15 March 1997 to 31 May 1997, commit indecent acts with A_ L._A_ by having sex with A_ L. A_, in front of another person.
          Findings: In accordance with the Applicant’s pleas, to Charge I and the sole specification thereunder, guilty, to Specifications 1 and 2 under Charge II, not guilty, and to Charge III and the sole specification thereunder, not guilty.
         Sentence: Confinement for 140 days, reduction to E-1, Bad Conduct discharge.
         CA 981021: In accordance with the terms of the pre-trial agreement, the sentence is approved and, except for bad conduct discharge, ordered executed.
        
980721:  Joined Marine Corps Brig Quantico, Quantico, Virginia, for confinement [Extracted from DD Form 214].

981111:  From confinement, restored to full duty [Extracted from DD Form 214].
990830:  NMCCCA: The findings of guilty and sentence, as approved on review,
         are affirmed.
991203:  Appellate review complete.
991217:  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 19991217 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). After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, the Board found that the Applicant’s issues were insufficient to merit clemency (C).

In accordance with his plea, the Applicant was convicted of one specification of UCMJ Article 120, carnal knowledge for a sexual relationship he had with a 15-year-old female. The Applicant was sentenced to a reduction to E-1, confinement for 140 days, and a bad conduct discharge. On appeal, the Applicant raised several assignments of error, specifically that the adjudged discharge was too severe given the nature of the offense and the Applicant’s prior service and that the pre-trial agreement was defective due to the absence of meaningful consideration. The Applicant’s issues were reviewed by the Navy Marine Corps Court of Criminal Appeals and the conviction was affirmed.

The Applicant implies that his discharge should be upgraded for “lack of speedy trial.” A speedy trial is guaranteed in the military under UCMJ Article 10 and RCM 707. UCMJ Article 10 guarantees a speedy trial to those accused who have been placed in pretrial confinement. RCM 707 provides that a trial must occur within 120 days of the preferral of charges. Additionally, RCM 707(e) specifically states that a plea of guilty resulting in a finding of guilty waives the right to a speedy trial as to that offense. There is no evidence in the record to indicate that the Applicant was ever placed in pretrial confinement. As such, UCMJ Article 10 affords the Applicant no relief. Furthermore, the Applicant was found guilty on the basis of his pleas. Therefore, any RCM 707 speedy trial claim was waived as a result of the Applicant’s guilty plea. Relief denied.

The Applicant implies that his discharge should be upgraded because he received “poor legal representation.” Under the NDRB’s governing instruction, r elevant and material facts stated in a court-martial specification are presumed by the NDRB to be established facts. With respect to a discharge or dismissal adjudged by a court-martial case tried under the Uniform Code of Military Justice, the action of the NDRB extends only to a change in the discharge or dismissal for purposes of clemency. In the Applicant’s case, an award of clemency would be appropriate if the NDRB concluded the Applicant was correct in his assertions that his due process rights were violated by ineffective assistance of counsel. However, the NDRB noted that the Applicant has already had at least two opportunities to raise this specific issue for legal review and failed to do so both times. Additionally, the NDRB noted that a total of four independent military judges have reviewed the Applicant’s case at both the trial and appellate levels and have found no evidence to support the Applicant’s claim of ineffective assistance of counsel. Although such findings are not binding upon the NDRB in its grant of clemency, they are extremely persuasive. It is incumbent upon the Applicant to establish his issues through the presentation of substantial and credible evidence. There is no evidence in the record, nor has the Applicant produced any evidence, to support the contention that his due process rights were violated by ineffective assistance of counsel. The Applicant’s statements alone are insufficient to establish his claims. 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. 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 120, rape and carnal knowledge.

 C. Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part II, Para 205(2), Jurisdictional Limitations Authority for Review of Discharges .


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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