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


FOR OFFICIAL USE ONLY


ex-SR, USN
Docket No. ND05-01398

Applicant’s Request

The application for discharge review was received on 20050822. The Applicant requests the Discharge Characterization of Service received at the time of discharge be changed to entry level separation or uncharacterized. The Applicant requests a personal appearance hearing discharge review before the Board in the Washington National Capital Region. The Applicant designated American Legion as the representative on the DD Form 293.
In the acknowledgement letter, the Applicant was informed that the Naval Discharge Review Board (NDRB) first conducts a documentary review prior to any personal appearance hearing.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20060421. 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.

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PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the attached document/letter:

“To Whom It May Concern:

My discharge was inequitable because it was based on one isolated incident in eleven months of service with no other adverse action. Additionally, I would like to ask the board of Reviewers to consider my request for a change in discharge to entry level to enter into the United States Navy based on the following.

After many years of living in a home filled with violence, drugs, and abuse I decided I wanted a better future. I was tired of the sorrow I witnessed from my father’s lack of presence in the home and my mother’s inability to defend herself from his beatings. I yearned for a better way of life however, at the tender age of seventeen and as naïve as I was at the time I figured I could solve my problems by joining the Navy. So, I did with the help and signature of my mother.

Once in the Navy I was happy because for once I felt invincible. I was away from all the violence, and fell in control of my destiny. I was taught character and my self-esteem received an enormous boost. However, it wasn’t long before the problems and issues I had spent many years trying to escape from became overwhelming. I began to realize I still lacked maturity, discipline and depression began to impede my efforts. As time went on I felt the pressures from home needed my full attention. You have to remember I was only seventeen and carried all the worries and my mother’s concerns on my shoulders.

I felt the need to help her even if it meant jeopardizing my responsibility to serve in the Navy. Of course, at the age of twenty-eight and much wiser I realized the consequences of my actions.

I am proud to say that my mother lives a better life and is in peace now. My father lives alone and still has several-issues he must deal with. I on the other hand have a wonderful wife, great kids and will be receiving my Bachelors in Psychology in a few short months. The mistakes I made of leaving the Navy as I did still haunts me today. This is why I am requesting for the Board to review my letter and consider my request. I believe we all make mistakes and deserve second chances. I have paid the price for the mistake kindly.

I also believe- I would be a great candidate as a Active/Reservist if given the opportunity because of the knowledge and responsibility I have acquired through maturity. What I did years ago was a selfish, immature and ignoble act and for this reason I would ask that I be given a chance to redeem myself. After accomplishing many of my goals to this day I still feel the need to correct my wrong doing and finish what I started so many years ago. Please, I do implore for the board to acknowledge my request and let me appear in front of the panel.

Respectfully submitted,
C_ A_(applicant)




Representative submitted no issues.


Documentation

In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:

Applicant’s DD Form 214
Reference Letter from D_ G_, dtd November 30, 2004
Reference Letter from J_ R_, dtd May 10, 2005
High School Diploma
Associate of Arts Degree from El Paso Community College
Letter of Recommendation from Y_ M_, dtd September 12, 2005
Transcript from El Paso Community College (2 pgs)

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PART II - SUMMARY OF SERVICE

Prior Service (component, dates of service, type of discharge):

         Inactive: USNR (DEP)     19950526 – 19950725               COG
         Active: None

Period of Service Under Review :

Date of Enlistment: 19950726             Date of Discharge: 19971201

Length of Service (years, months, days):

         Active: 02 04 05 (Does not exclude lost time.)
         Inactive: None

Time Lost During This Period (days):

         Unauthorized absence: 219 days
         Confinement:              22 days

Age at Entry: 18

Years Contracted: 4

Education Level: 12                                 AFQT: 42

Highest Rate: SA

Final Enlisted Performance Evaluation Averages (number of marks):

Performance: 3.0 (2)              Behavior: 3.0 (2)                 OTA: 3 .00

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214): National Defense Service Medal.

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

BAD CONDUCT/COURT MARTIAL CONVICTION, authority: NAVMILPERSMAN, Article 3640420.

Chronological Listing of Significant Service Events :

951219:  Retention Warning: Advised of deficiency (Larceny of private property), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

951219:  NJP for violation of UCMJ, Article 121: Larceny of private property.
Award: Forfeiture of $200 per month for 2 months, reduction to E-1. No indication of appeal in the record.

960801:  Report of Declaration of Deserter. Applicant declared a deserter on 960628 having been an unauthorized absentee since 0710, 960527 from USS NORMANDY (CG-60).

970106:  Report of Return of Deserter. Applicant apprehended by civil authorities on 970105 (1440) at El Paso, TX. Returned to military control 970105 (1500).

970106:  Pre-trial confinement from 970106 to 970128 (22 days).

970128:  Joined Naval Brig, Naval Station, Norfolk, Virginia, for confinement.

970130:  From confinement, restored to full duty.

970303:  Special Court Martial
         Charge I: violation of the UCMJ, Article 86.
         Specification: UA absent himself from unit on 960527 until apprehended 970105. Plea: Guilty. Finding: Guilty
         Charge II: violation of UMCJ, Article 87 (3 specifications).
         Specification 1: Missing movement through neglect on 960619. Plea: Not Guilty. Finding: Not Guilty.
         Specification 2: Missing movement through neglect on 960709. Plea: Guilty. Finding: Guilty
         Specification 3: Missing movement through neglect on 960717. Plea: Not Guilty. Finding: Not Guilty
         Sentence: Confinement for 60 days, Bad Conduct discharge.
         CA 970303: The sentence is approved and, except for the part of the sentence extending to a bad conduct discharge will be executed, but the execution of that part of the sentence adjudging confinement in excess of 30 days is suspended for 12 months from the date of trial, at which time, unless the suspension is sooner vacated, the suspended part of the sentence will be remitted without further action. The accused shall be credited with 22 days of confinement against the sentence adjudged.
        
970319:  Applicant to appellate leave.

970908:  NMCCCA: The findings of guilty and sentence, as approved on review,
         are affirmed.

971120:  Appellate review complete.

971201:  SSPCMO: Article 71c, UCMJ, having been complied with, Bad Conduct discharge ordered executed.

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PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged in absentia on 19971201 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).

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 and that the sentence awarded the Applicant at his court-martial was appropriate for the offenses he committed. Relief denied.

The Applicant requests the Discharge Characterization of Service be changed to Entry Level Separation or Uncharacterized. By regulation, members notified of intended recommendation for discharge within the first 180 days of enlistment are eligible for an uncharacterized or entry-level separation characterization of service. During the first 180 days of service, the Applicant was awarded non-judicial punishment for violation of UCMJ, Article 121 and the command decided to retain him. Subsequently, the Applicant commenced a second period of misconduct by going on unauthorized absence starting 960527. This second misconduct commenced after 180 days of service. Relief denied.

The Applicant contends his disciplinary problems were the result of pressure caused by his family situation. The NDRB recognizes that serving in the U.S. Navy is challenging. Our country is fortunate to have men and women willing to endure the hardships and sacrifices required in order to serve their country. It must be noted that most members of the Navy serve honorably and therefore earn their honorable discharges. In fairness to those members of the Navy, commanders and separation authorities are tasked to ensure that undeserving Sailors receive no higher characterization than is due. The NDRB found that the Applicant's service was equitably characterized. Relief denied.

The NDRB is authorized to consider post-service factors in the recharacterization of a discharge (B, Part IV). However, there is no law or regulation, which provides that an unfavorable discharge, may be upgraded based solely on the passage of time, or good conduct in the civilian life subsequent to leaving the service. Normally, to permit relief, a procedural impropriety or inequity must have been found to have existed during the period of enlistment in question. Outstanding post-service conduct, to the extent that such matters provide a basis for a more thorough understanding of the Applicant’s performance and conduct during the period of service under review, is considered. The Applicant provided three letters of recommendation and his college transcript as documentation of his post-service. The Applicant's efforts need to be more encompassing than those provided. For example, the Applicant could have produced a verifiable employment record, detailed documentation of community service, and certification of non-involvement with civil authorities, in order for consideration for clemency based on post-service conduct. At this time, the Applicant has not provided sufficient documentation of post service character and conduct to mitigate the misconduct that resulted in his characterization of discharge. Therefore, no relief will be granted.

The Applicant states that he “would be agreat candidate” for military service and asks “that he be given a chance to redeem” himself. Since the NDRB has no jurisdiction over reenlistment, reentry, or reinstatement into the Navy, Marine Corps, or any other of the Armed Forces, NDRB is not authorized to change a reenlistment code. An unfavorable “RE” code is, in itself, not a bar to reenlistment. A request for a waiver can be submitted during the processing of a formal application for reenlistment through a recruiter. Only the Board for Correction of Naval Records (BCNR) can make changes to reenlistment codes.

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 additional evidence related to this discharge. Representation at a personal appearance hearing is recommended but not required.

Pertinent Regulation/Law (at time of discharge)

A. Naval Military Personnel Manual, (NAVPERS 15560C), Change 14, effective
03 Oct 96 until 14 Dec 98, 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, Article 121 – larceny, and Article 87 – missing movement through neglect.

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.

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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