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NAVY | DRB | 2005_Navy | ND0501430
Original file (ND0501430.rtf) Auto-classification: Denied


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

ex-DPSR, USN
Docket No. ND05-01430

Applicant’s Request
The application for discharge review was received on 20050830. 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.
Subsequent to the application, the applicant obtained representation by American Legion.

 Decision

A documentary discharge review was conducted in Washington, D.C. on 20060504. 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 and attached document/letter:

1. “The discharge was improper because I was coerced by my attorney to say I did steal money from the victim. In Fact the victim gave me his ATM card to handle some of his bills and told me I could borrow from him if needed. I was guilty of irresponsible and overwhelmed by my new environment. I was only 19 years old in a foreign country with no direct supervision, I had every intention of paying V_ F_ his money back, I was never even given a chance to do so. The victim was my best friend and we remained friends after the incident. The Duty station was very political, I was on bad footing with my superiors and they (Chief P_) wanted me gone. I was asked to put in a transfer a week after I arrived, I wish now that I had. I made a mistake in judgment its true, but not to the extreme of being kicked out the Navy.”

2. ”The discharge was improper because all involved knew I had a drinking problem and required help not punishment. I am now aware of programs the Navy offered to help Sailors, I was not given any opportunity to receive help. I was castaway I never recovered from being kicked out the Navy.”

3. “The discharge is improper because I didn’t have knowledge of the repercussions to pleading to a Bad Conduct Discharge. I was not given access to a law library nor did my attorney explain to me the seriousness of the crime or how detrimental to civilian life a Bad Conduct Discharge would be. It was my wish to retire in the Navy as my brother did. I was naïve in thinking that the attorney’s advice was my only option. A gross injustice occurred and a life was destroyed.”

I certify under penalty or perjury that the foregoing is true and correct.

Executed 17 Jul 05

Respectfully
[signed] L_ B_


Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant’s DD Form 214 (2)
Affidavit from Applicant

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     19891114 – 19900805               COG
         Active: None

 Period of Service Under Review :
Date of Enlistment: 19900806             Date of Discharge: 19930610

 Length of Service (years, months, days):

         Active: 02 10 05
         Inactive: None

 Time Lost During This Period (days):
         Unauthorized absence: none
         Confinement:              none

 Age at Entry: 18

Years Contracted: 4 (12 month extension)

 Education Level: 12                                 AFQT: 66

 Highest Rate: DPSN

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.2 (1)              Behavior: 3.2 (1)                 OTA: 3 .40

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


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 :

901116:  NJP for violation of UCMJ, Article 92: On or about 0409, 901104, MBR failed to obey a lawful order by violating the Tijuana, Mexico Curfew.
         Award: Forfeiture of $100 per month for 1 month. No indication of appeal in the record.

910916:  Retention Warning: Advised of deficiency (Report of misconduct and disregarding a direct order from a senior petty officer. This is to document your misconduct on a public London bus 910725. During this incident Applicant were documented as using abusive language and exhibiting such behavior as to bring discredit upon yourself and the U.S. Navy. Further to this incident, Applicant disobeyed a direct order from a senior petty officer. This warning affords Applicant to reevaluate his conduct and take corrective action.

 920129:  Special Court Martial
         Charge I: violation of the UCMJ, Article 80, (51 specifications).
         Specifications 1 through 50: On several individual dates during the period of 910628 and 910807, at the Merchant’s Bank ATM Machine, attempt to steal some amount of money, the property of CTOSN V_ F_, USN. Plea : Not Guilty. Finding : Withdrawn.
         Specification 51: During the period of 910628 and 910807, at the Merchant’s Bank ATM Machine, attempt to steal some amount of money, the property of CTOSN V_ F_, USN. Plea : Guilty. Finding : Guilty.
         Charge II: violation of UMCJ, Article 121, (46 specifications).
         Specifications 1 through 45: On several individual dates during the period of 910607 and 910817, at the Merchant’s Bank ATM Machine, attempt to steal some currency, the property of CTOSN V_ F_, USN. Plea : Not Guilty. Finding : Withdrawn.
         Specification 46: During the period of 910607 and 910817, at the Merchant’s Bank ATM Machine, attempt to steal some currency, valued at $2559.29, the property of CTOSN V_ F_, USN. Plea : Guilty. Finding : Guilty.
         Sentence: Confinement for 3 months, reduction to E-1, Bad Conduct discharge.
         CA 920515: The sentence is approved and except for the portion of the sentence extending to the bad conduct discharge and confinement in excess of 88 days, will be executed. The confinement in excess of 88 days is suspended for one year, at which time, unless sooner vacated the suspended part of the sentence will be remitted without further action.

920303:  Violation of UMCJ, Article 91: In the Data Processing Seaman L_ NMN B_, USN, Fleet Oceana Surveillance Information Center, Europe, London, England, on active duty, at the American Embassy, London, England, on or about 920207, was disrespectful in language toward Master Sergeant R_ E. R_, USMC, then known by he said Data Processing Seaman L_ NMN B_ to be a superior petty officer, who was then in the execution of his office, by saying to him “I’ve been out of the Navy for two months, M_ F_” and “Come on, M_ F_, come on M_ F_” or words to that effect.
         Violation of UCMJ, Article 117: In the Data Processing Seaman L_ NMN B_, USN, Fleet Oceana Surveillance Information Center, Europe, London, England, on active duty, at the American Embassy, London, England, on or about 920207, wrongfully use provoking words, to wit: “I’ve been out of the Navy for two months, M_ F_” and “Come on, M_ F_, come on M_ F_” or words to that effect toward Master Sergeant R_ E. R_, USMC.
         Violation of UCMJ, Article 134: (2 specifications),
 Specification 1: In the Data Processing Seaman L_ NMN B_, USN, Fleet Oceana Surveillance Information Center, Europe, London, England, on active duty, at the American Embassy, London, England, on or about 920207, orally communicate to Master Sergeant R_ E. R_, USMC, and other American Embassy employees and British guests, certain language, to wit: “I’ve been out of the Navy for two months, M_ F_” and “Come on, M_ F_, come on M_ F_”.
          Specification 2: In the Data Processing Seaman L_ NMN B_, USN, Fleet Oceana Surveillance Information Center, Europe, London, England, on active duty, at the American Embassy, London, England, on or about 920207, was disorderly, which conduct was of a nature to bring discredit upon the Armed Forces of the United States. Deferment of confinement (awarded 920129 and suspended) rescinded by Commander, U.S. Naval Activities, United Kingdom.

 920415:  Hearing convened by Commander, U.S. Naval Activities, United Kingdom to determine whether DPSN B_ had violated the terms of his pre-trial agreement. DPSN B_ was advised of being suspected of committing the following violation of the UCMJ, Article 91: on or about 7 February 1992, at the American Embassy, London, England, was disrespectful in language toward Master Sergeant R_ E. R_, USMC, a man he knew to be a superior non commissioned officer in the performance of his duties. “COMNAVACTUK made the determination that DPSN B_ did commit the offense of violating Article 91, UCMJ – being disrespectful in language toward MSGT R_ whom DPSN B_ knew to be a superior noncommissioned officer in the performance of his duties on 7 February 1992. COMNAVACTS stated that his decision was based on the statements of the witnesses and no real support for DPSN B_’s statement as well as little motivation for the other witnesses to lie. He felt no substantial effort had been made towards payment of restitution of $2,604.29, which was to be paid either by 31 March 1992 or by the date COMNAVACTUK signs his action on the sentence. . . . DPSN B_ was advised that his commission of the offense noted earlier has the effect of violating the terms of his pretrial agreement and, therefore, when COMNAVACTUK acts upon the sentence adjudged by the court he will not be bound by the terms of that agreement in considering the agreement has already had the effect of COMNAVACTUK rescinding the deferment he formerly agreed to, and he ordered DPSN B_’s continued confinement, unless DPSN B_ felt there were other matters which he would have COMNAVACTUK consider in regard to another deferment request. The accused did not submit any such matters.”

920831:  NMCCMR : The findings of guilty and sentence, as approved on review,
         are affirmed.

930223:  COMA : Request for appeal granted.

930610:  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 19930610 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 response to the Applicant’s issues, 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 alleges impropriety in that his defense counsel was ineffective or negligent. The record contains no evidence of any wrongdoing by the Applicant’s defense counsel, or anyone else, in the discharge process. Further, the Applicant alleges he did not understand the repercussions of his guilty plea. The record of trial does not support this assertion. The Applicant provided no corroboration of these claims. The Board found that the Applicant’s discharge was regular in all respects. Relief denied.

The Applicant alleges that he had a drinking problem, his superiors knew about the drinking problem and that he was not offered treatment. There is no evidence in the record, nor has the Applicant produced any evidence, to support the contention that his superiors knew of a drinking problem and did not offer treatment. The Applicant’s statements alone do not overcome the government’s presumption of regularity in this case. However, even if the Applicant could prove he had a drinking problem, this condition would neither amount to a justification nor to a defense for the Applicant’s own misconduct. 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. 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 . The Naval Military Personnel Manual, (NAVPERS 15560C), Change 5, effective 05 Mar 93 until 02 Oct 96, 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 general order, Article 121 – larceny of value more than $100, Article 91 – insubordinate conduct toward noncommissioned officer, and Article 134 – disorderly conduct.

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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