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


FOR OFFICIAL USE ONLY


ex-FR, USNR
Docket No. ND06-00230

Applicant ’s Request

The application for discharge review was received on 20051118 . The Applicant requests the Discharge Characterization of Service received at the time of discharge be changed to honorable . 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 20061108 . 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 application and/or attached document/letter:

“ See attached copies no criminal record .”

Documentation

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

Statement from Applicant , dtd November 8, 2005
Applicant ’s DD Form 214 (3 copies)
Miami Union Academy diploma, dtd May 28, 1989
Certificate of completion for the ASE Refrigerant Recovery and Recycling Review and Quiz, dtd April 12, 2000
Certificate of Achievement for completion of GE Genesis Electrical Troubleshooting, dtd April 30, 1999
Certificate of Achievement for completion of Air Conditioning and Refrigeration Certification, dtd November 14, 1997
Twenty-three pages from Applicant ’s medical records

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PART II - SUMMARY OF SERVICE

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

         Inactive: USNR (DEP)     19891221 – 19900122               COG
         Active: None

Period of Service Under Review :

Date of Enlistment: 19 900123              Date of Discharge: 19941011

Length of Service (years, months, days):

         Active: 0 4 0 8 18 (Does not exclude lost time.)
         Inactive: 00 01 02

Time Lost During This Period (days):

         Unauthorized absence: 3 days
         Confinement:              42 days

Age at Entry: 18

Years Contracted: 8 (36 months active)

Education Level: 12                                 AFQT: 27

Highest Rate: FN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance: 3 .8 0 ( 3 )                       Behavior: 2.87 ( 3 )                 OTA: 2 . 87

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214 ) : Sea Service Deployment Ribbon (2nd award)

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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 :

900123 :  Commenced active duty for a period of 36 months.

930106 :  NJP for violation of UCMJ, Article 121: Larceny of one (1) Chinon camera and one (1) Sony Walkman, of a value of $100.00, the prop of E-3 on 92Nov11.
Violation of UCMJ, Article 134 (2 specs):
S pecification 1: Wrngfly receive two ( 2 ) personal checks, of some value, the prop of E-3 on 92Nov11.
Specification 2: Wrngfly poss with intent to deceive two certain instruments purporting to be another’s Virginia State Drivers License which had his picture attached to them, then well knowing the same to be false on 92Nov11.
         Award: Forfeiture of $ 456.60 per month for 2 month s , restriction and extra duty for 45 days, reduction to E- 2 . No indication of appeal in the record.

930123:  Applicant held beyond normal date of expiration of enlistment for legal investigation that may result in trial by court martial.

930407:  Applicant to confinement.

930413:  Applicant from confinement (6 days).

930420 :  Charges preferred for violation of the Uniform Code of Military Justice (UCMJ) Article 123 (18 specifications):
         Specification 1: In that Fireman Apprentice O_ V. B_( Applicant ), Jr., U.S. Naval Reserve, USS JOHN F. KENNEDY, on active duty, did, in the Hampton Roads Area, Virginia, on or about 24 June 1992, with intent to defraud, falsely make in its entirety the signature of Electrician Fireman Apprentice H_ S_, Jr., U.S. Navy, as an indorsement to a certain share order draft agreement in the following words and figures, to wit: (copy of the share draft agreement form) which said share draft agreement would, if genuine, apparently operate to the legal harm of another.
         Specification 2: In that Fireman Apprentice O_ V. B_( Applicant ), Jr., U.S. Naval Reserve, USS JOHN F. KENNEDY, on active duty, did, in the Hampton Roads Area, Virginia, on or about 24 June 1992, with intent to defraud, falsely make in its entirety the signature of Electrician Fireman Apprentice H_ S_, Jr., U.S. Navy, as an indorsement to a certain authorization for automatic transfer in the following words and figures, to wit: (copy of the authorization for automatic transfer form) which said authorization for automatic transfer would, if genuine, apparently operate to the legal harm of another.
         Specification 3: In that Fireman Apprentice O_ V. B_( Applicant ), Jr., U.S. Naval Reserve, USS JOHN F. KENNEDY, on active duty, did, in the Hampton Roads Area, Virginia, on or about 29 June 1992, with intent to defraud, falsely make in its entirety the signature of Electrician Fireman Apprentice H_ S_, Jr., U.S. Navy, as an indorsement to a certain automated teller machine application in the following words and figures, to wit: (the copy of Automated Teller Machine Application Form) which said automated teller machine application would, if genuine, apparently operate to the legal harm of another.
         Specification 4: In that Fireman Apprentice O_ V. B_( Applicant ), Jr., U.S. Naval Reserve, USS JOHN F. KENNEDY, on active duty, did, at Navy Exchange, Naval Station, Norfolk, Norfolk, Virginia, on or about August 1992, with intent to defraud, falsely make in its entirety a certain check in the following words and figures, to wit: (copy of the check , number 0101 to NEX in the amount $150.00 ) which said check would, if genuine, apparently operate to the legal harm of another.
         Specification 5: In that Fireman Apprentice O_ V. B_( Applicant ), Jr., U.S. Naval Reserve, USS JOHN F. KENNEDY, on active duty, did, on board USS JOHN F. KENNEDY, located at Naval Station, Norfolk, Virginia, on or about August 1992, with intent to defraud, falsely make in its entirety a certain check in the following words and figures, to wit: (copy of the check , number 0102 to Special Services in the amount $15.00 ) which said check would, if genuine, apparently operate to the legal harm of another .
         Specification 6: In that Fireman Apprentice O_ V. B_( Applicant ), Jr., U.S. Naval Reserve, USS JOHN F. KENNEDY, on active duty, did, at Navy Exchange, Naval Station, Norfolk, Virginia, on or about August 1992, with intent to defraud, falsely make in its entirety a certain check in the following words and figures, to wit: (copy of the check , number 0103 to NEX in the amount $44.96) which said check would, if genuine, apparently operate to the legal harm of another .
         Specification 7: In that Fireman Apprentice O_ V. B_( Applicant ), Jr., U.S. Naval Reserve, USS JOHN F. KENNEDY, on active duty, did, on board USS JOHN F. KENNEDY located at Naval Station, Norfolk, Virginia, on or about August 1992, with intent to defraud, falsely make in its entirety a certain check in the following words and figures, to wit: (copy of the check , number 0104 to Disb Off JOHN F. KENNEDY in the amount $150.00) which said check would, if genuine, apparently operate to the legal harm of another.
         Specification 8: In that Fireman Apprentice O_ V. B_( Applicant ), Jr., U.S. Naval Reserve, USS JOHN F. KENNEDY, on active duty, did, in the Hampton Roads Area, Virginia , on or about August 1992, with intent to defraud, falsely make in its entirety a certain check in the following words and figures, to wit: (copy of the check , number 0105 to NEX in the amount $150.00) which said check would, if genuine, apparently operate to the legal harm of another.
         Specification 9: In that Fireman Apprentice O_ V. B_( Applicant ), Jr., U.S. Naval Reserve, USS JOHN F. KENNEDY, on active duty, did, at Navy Exchange, Naval Station, Norfolk, Virginia, on or about August 1992, with intent to defraud, falsely make in its entirety a certain check in the following words and figures, to wit: (copy of the check , number 0107 to NEX in the amount $150.00) which said check would, if genuine, apparently operate to the legal harm of another.
Specification 10: In that Fireman Apprentice O_ V. B_( Applicant ), Jr., U.S. Naval Reserve, USS JOHN F. KENNEDY, on active duty, did, at Navy Exchange, Naval Station, Norfolk, Virginia, on or about August 1992, with intent to defraud, falsely make in its entirety a certain check in the following words and figures, to wit: (copy of the check , number 0108 to NEX in the amount $150.00) which said check would, if genuine, apparently operate to the legal harm of another.
         Specification 11: In that Fireman Apprentice O_ V. B_( Applicant ), Jr., U.S. Naval Reserve, USS JOHN F. KENNEDY, on active duty, did, at Navy Exchange, Naval Station, Norfolk, Virginia, on or about August 1992, with intent to defraud, falsely make in its entirety a certain check in the following words and figures, to wit: (copy of the check , number 0109 to NEX in the amount $150.00) which said check would, if genuine, apparently operate to the legal harm of another.
         Specification 12: In that Fireman Apprentice O_ V. B_( Applicant ), Jr., U.S. Naval Reserve, USS JOHN F. KENNEDY, on active duty, did, at Navy Exchange, Naval Station, Norfolk, Virginia, on or about August 1992, with intent to defraud, falsely make in its entirety a certain check in the following words and figures, to wit: (copy of the check , number 0111 to NEX in the amount $150.00) which said check would, if genuine, apparently operate to the legal harm of another.
         Specification 13: In that Fireman Apprentice O_ V. B_( Applicant ), Jr., U.S. Naval Reserve, USS JOHN F. KENNEDY, on active duty, did, at Naval Amphibious Base, Little Creek, Norfolk, Virginia, on or about August 1992, with intent to defraud, falsely make in its entirety a certain check in the following words and figures, to wit: (copy of the check , number 0112 to NEX in the amount $150.00) which said check would, if genuine, apparently operate to the legal harm of another.
         Specification 14: In that Fireman Apprentice O_ V. B_( Applicant ), Jr., U.S. Naval Reserve, USS JOHN F. KENNEDY, on active duty, did, at Naval Air Station Oceana, Virginia Beach, Virginia, on or about August 1992, with intent to defraud, falsely make in its entirety a certain check in the following words and figures, to wit: (copy of the check , number 0113 to NEX in the amount $42.90) which said check would, if genuine, apparently operate to the legal harm of another.
         Specification 15: In that Fireman Apprentice O_ V. B_( Applicant ), Jr., U.S. Naval Reserve, USS JOHN F. KENNEDY, on active duty, did, at Naval Air Station Oceana, Virginia Beach, Virginia , on or about August 1992, with intent to defraud, falsely make in its entirety a certain check in the following words and figures, to wit: (copy of the check , number 0115 to USS JOHN F KENNEDY (CV 67) in the amount $300.00) which said check would, if genuine, apparently operate to the legal harm of another.
         Specification 16: In that Fireman Apprentice O_ V. B_( Applicant ), Jr., U.S. Naval Reserve, USS JOHN F. KENNEDY, on active duty, did, on board USS JOHN F. KENNEDY located at Naval Station, Norfolk, Virginia, on or about August 1992, with intent to defraud, falsely make in its entirety a certain check in the following words and figures, to wit: (copy of the check , number 0116 to NEX in the amount $44.53) which said check would, if genuine, apparently operate to the legal harm of another.
         Specification 17: In that Fireman Apprentice O_ V. B_( Applicant ), Jr., U.S. Naval Reserve, USS JOHN F. KENNEDY, on active duty, did, at Navy Exchange, Naval Station, Norfolk, Virginia, on or about August 1992, with intent to defraud, falsely make in its entirety a certain check in the following words and figures, to wit: (copy of the check , number 0117 to NEX in the amount $150.00) which said check would, if genuine, apparently operate to the legal harm of another.
         Specification 18: In that Fireman Apprentice O_ V. B_( Applicant ), Jr., U.S. Naval Reserve, USS JOHN F. KENNEDY, on active duty, did, in the Hampton Roads Area, Virginia, on or about August 1992, with intent to defraud, falsely make in its entirety a certain check in the following words and figures, to wit: (copy of the check , number 0118 to NEX in the amount $150.00) which said check would, if genuine, apparently operate to the legal harm of another.

930420 :  Charges referred to special court-martial.

930423:  Applicant to unauthorized absence at 0630 on 930423.

930426:  Applicant from unauthorized absence at 0630 on 930426 (3 days/surrendered). EAOS changed to 940726.

930614:  Pre trial agreement and maximum sentence appendix approved .

930616 :  Special Court Martial :
         Charge: Article 123. Plea: G. Finding: G.
Specification 1: Forgery by falsely make in its entirety the signature of another as an indorsement to a certain share draft agreement which if genuine, would apparently operate to the legal harm of another on or about 24 Jun 92. Plea: G. Finding: G.
Specification 2: Forgery by falsely make in its entirety the signature of another as an indorsement to a certain share draft agreement which if genuine, would apparently operate to the legal harm of another on or about 24 Jun 92. Plea: G. Finding: G.
Specification 3: Forgery by falsely make in its entirety the signature of another as an indorsement to a certain share draft agreement which if genuine, would apparently operate to the legal harm of another on or about 29 Jun 92. Plea: G. Finding: G.
Specification 4: Forgery by falsely make in its entirety the signature of another as an indorsement to a certain share draft agreement which if genuine, would apparently operate to the legal harm of another on or about Aug 92. Plea: G. Finding: G.
Specification 5: Forgery by falsely make in its entirety the signature of another as an indorsement to a certain share draft agreement which if genuine, would apparently operate to the legal harm of another on or about Aug 92. Plea: NG. Finding: NG.
Specification 6: Forgery by falsely make in its entirety the signature of another as an indorsement to a certain share draft agreement which if genuine, would apparently operate to the legal harm of another on or about Aug 92. Plea: G. Finding: G.
Specification 7: Forgery by falsely make in its entirety the signature of another as an indorsement to a certain share draft agreement which if genuine, would apparently operate to the legal harm of another on or about Aug 92. Plea: NG. Finding: NG.
Specification 8: Forgery by falsely make in its entirety the signature of another as an indorsement to a certain share draft agreement which if genuine, would apparently operate to the legal harm of another on or about Aug 92. Plea: G. Finding: G.
Specification 9: Forgery by falsely make in its entirety the signature of another as an indorsement to a certain share draft agreement which if genuine, would apparently operate to the legal harm of another on or about Aug 92. Plea: G. Finding: G.
Specification 10: Forgery by falsely make in its entirety the signature of another as an indorsement to a certain share draft agreement which if genuine, would apparently operate to the legal harm of another on or about Aug 92. Plea: G. Finding: G.
Specification 11: Forgery by falsely make in its entirety the signature of another as an indorsement to a certain share draft agreement which if genuine, would apparently operate to the legal harm of another on or about Aug 92. Plea: G. Finding: G.
Specification 12: Forgery by falsely make in its entirety the signature of another as an indorsement to a certain share draft agreement which if genuine, would apparently operate to the legal harm of another on or about Aug 92. Plea: G. Finding: G.
Specification 13: Forgery by falsely make in its entirety the signature of another as an indorsement to a certain share draft agreement which if genuine, would apparently operate to the legal harm of another on or about Aug 92. Plea: G. Finding: G.
Specification 14: Forgery by falsely make in its entirety the signature of another as an indorsement to a certain share draft agreement which if genuine, would apparently operate to the legal harm of another on or about Aug 92. Plea: G. Finding: G.
Specification 15: Forgery by falsely make in its entirety the signature of another as an indorsement to a certain share draft agreement which if genuine, would apparently operate to the legal harm of another on or about Aug 92. Plea: NG. Finding: NG.
Specification 16: Forgery by falsely make in its entirety the signature of another as an indorsement to a certain share draft agreement which if genuine, would apparently operate to the legal harm of another on or about Aug 92. Plea: G. Finding: G.
Specification 17: Forgery by falsely make in its entirety the signature of another as an indorsement to a certain share draft agreement which if genuine, would apparently operate to the legal harm of another on or about Aug 92. Plea: G. Finding: G.
Specification 18: Forgery by falsely make in it entirety the signature of another as an indorsement to a certain share draft agreement which is genuine, would apparently operate to the legal harm of another on or about Aug 92. Plea: G. Finding: G.
         Sentence: Confinement for 75 days, reduction to E-1, Bad Conduct discharge.
         CA 931115 : The sentence approved and ordered executed, except for bad conduct discharge; h owever the execution of that part of the sentence extending to confinement in excess of 60 days is suspended for 12 months from the date of trial at which time, unless the suspension is sooner vacated, the suspension part of the sentence will be remitted without further action. SA: see SSPCMO.

930616:  Joined Navy Brig, Naval Station, Norfolk, VA, for confinement.

930708:  Applicant ’s clemency request submitted .  
        
930719:  Staff Judge Advocate’s Post Trial Recommendation submitted .

930723:  Applicant found medically qualified for separation.

930724 :  From confinement, restored to full duty (38 days).

930820:  Addendum to post-trial recommendation submitted .

930929:  Applicant acknowledged receipt of the Addendum to the Staff Judge Advocate’s Post-Trial recommendation and indicated he would submit written comments.

940603:  NMCCMR: The findings of guilty and sentence, as approved on review, are affirmed.

940916:  United States Court of Military Appeals, o rder denying petition.

940930 :  Appellate review complete.

941011 :  SSPCMO: Article 71c, UCMJ, having been complied with, Bad Conduct discharge ordered executed.

Service Record was missing elements of the Summary of Service.

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PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19941011 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). The Board presumed regularity in the conduct of governmental affairs (D).

The Applicant requested upgrade of his discharge to an honorable characterization. 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. Relevant and material facts stated in a court-martial specification for which the Applicant was found guilty are presumed by the NDRB to be established facts. After a thorough review of the Applicant’s record, documents 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 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 5, effective
05 Mar 93 until 02 Oct 96, Article 3640420, DISCHARGE OF ENLISTED PERSONNEL ADJUDGED BY SENTENCE OF COURT-MARTIAL

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, Articles 121 (larceny) and 123 (forgery).

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 .

D. Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part II, Para 211, Regularity of Government Affairs.

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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