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NAVY | DRB | 2006_Navy | ND0600312

Original file (ND0600312.rtf) Auto-classification: Denied

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

FOR OFFICIAL USE ONLY

ex-MSSR, USNR
Docket No. ND06-00312

Applicant’s Request

The application for discharge review was received on 20051207. The Applicant requests the Discharge 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, DC. Metropolitan Area. The Applicant did not designate a representative on the DD Form 293. Subsequent to the application, the applicant obtained representation from the American Legion.

Decision

A personal appearance hearing discharge review was conducted in Washington, D.C. on 20061113 . After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, NDRB discerned no impropriety in the discharge action but did discern an inequity in the characterization of the Applicant’s service. The Board’s vote was 3-2 that the character of the discharge shall change, but by unanimous vote, the narrative reason for discharge shall not change. The discharge shall change to:
GENERAL (UNDER HONORABLE CONDITIONS)/CONVICTION BY COURT MARTIAL AUTHORITY.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

American Legion presents on behalf of the Applicant the following issue:

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), we request , on behalf of this former member, the Boards relief with an upgrade of his discharge characterization of service based on clemency.

Documentation

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

Letter from Applicant, undated
Letter from L_ A. T_, M.D. PGY-III Resident in Psychiatry, dtd June 16, 2003
Applicant’s DD Form 214
Criminal Record check, Count y of Allegheny Courthouse, dtd November 8, 2
Psychiatric Report on the Applicant from Hamot Medical Center, dtd October 13, 2003
Psychiatric Report on the Applicant from Hamot Medical Center, dtd August, 23,19995
Psychiatric Report on the Applicant from Hamot Medical Center, dtd October 16, 1995
Psychiatric Report on the Applicant from Hamot Medical Center, dtd November 07,1995
Psychiatric Report on the Applicant from Hamot Medical Center, dtd November 14, 1995
Psychiatric Report on the Applicant from Hamot Medical Center, dtd November 04,1995

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: 19881229             Date of Discharge: 19920602

Length of Service (years, months, days):

         Active: 03 03 10 (Does not exclude lost time.)
         Inactive: 00 01 24

Time Lost During This Period (days):

         Unauthorized absence: 2 days
         Confinement:              68 days

Age at Entry: 20

Years Contracted: 8

Education Level: 12                                 AFQT: 21

Highest Rate: MSSA

Final Enlisted Performance Evaluation Averages (number of marks):

Performance: 3.6 (1)              Behavior: 3.6 (1)                 OTA: 3 .60

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214): None.

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 :

890221: Commenced active duty for a period of 36 months of active duty in the Active Mariner Program.

890904: Applicant to unauthorized absence at 0530 on 890904.

890905: Applicant from unauthorized absence at 1400 on 890905
         (2 days/surrendered).

900413: Retention Warning: Advised of deficiency (Misconduct due to disobedience of a commissioned officer), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

900413: NJP for violation of UCMJ, Article 86: Unauthorized absence from 0330-0545, 900412.
         Violation of UCMJ, Article 92: Failure to obey lawful order 900413.
Violation of UCMJ, Article 128: Assault consummated by battery 900413.
Violation of UCMJ, Article 90 Willful disobedience of a superior commissioned officer          Award: Confinement 3 days Bread and Water, forfeiture of $200.00 pay per month for 2 months (forfeiture for 1 month suspended for 6 months). No indication of appeal in the record.

900612: Special Court-Martial.
         Charge I: violation of the UCMJ, Article 86: Absent from appointed place of duty, Weight Control Program 900425.
         Charge II: violation of the UCMJ, Article 89: Disrespect to an Officer 900425.
         Specification:
         Finding: to Charge and the specification thereunder, guilty.
         Sentence: Restriction for 45 days, reduced to E-1.
         CA action 900823: Approved and ordered executed.

900626: Forfeiture of pay awarded at NJP on 900413 vacated due to continued misconduct.

900626: NJP for violation of UCMJ, Article 91: Disrespect toward a Petty Officer 900621.
         Violation of UCMJ, Article 92: (3 specs), failure to obey lawful order 900621, and 2 on 900622.
Violation of UCMJ, Article 134: Drunk and disorder 900605.          Award: Forfeiture of $300.00 pay per month for 2 months, restriction and extra duty for 40 days, reduction to E-1. No indication of appeal in the record.

900907: NJP for violation of UCMJ, Article 86: Absence from appointed of duty, restricted muster 900907.
Award: Confinement 3 days Bread and Water. No indication of appeal in the record.

900924: NJP for violation of UCMJ, Article 86: Absence from appointed of duty, restricted muster 900923.
Award: Confinement 3 days Bread and Water. No indication of appeal in the record.

901004: Psychiatry evaluation: Diagnosed with Occupational Problem and Personality features with Passive Aggressive and Narcissistic Features. Fit for duty, however, may be unsuitable for continued Naval Service as a result of personality features.

901005: Pre-trial confinement from 901005-901206 for a period of 62 days. 62 days credited for time served.

901205: Special Court Martial [trial dates 901127 & 901205]
         Charge I: violation of the UCMJ, Article 86, (7 specifications).
         Specification 1: Did, on or about 1800, 27 July 1990, without authority, fail to go at the time prescribed to his appointed place of duty, to wit: Extra duty muster in Hangar Bay Three. Plea: Not Guilty. Findings: Not Guilty.
Specification 2: Did, on or about 1800, 3 August 1990, without authority, fail to go at the time prescribed to his appointed place of duty, to wit: Extra duty muster in Hangar Bay Three. Plea : Not Guilty. Findings : Not Guilty.
Specification 3: Did, on or about 1800, 5 August 1990, without authority, fail to go at the time prescribed to his appointed place of duty, to wit: Extra duty muster in Hangar Bay Three. Plea : Not Guilty. Findings : Not Guilty.

Specification 4: Did, on or about 1600, 23 August 1990, without authority, fail to go at the time prescribed to his appointed place of duty, to wit: Extra duty muster in Hangar Bay Three. Plea : Guilty. Findings : Guilty.
Specification 5: Did, on or about 1130, 24 August 1990, without authority, fail to go at the time prescribed to his appointed place of duty, to wit: Extra duty muster in Hangar Bay Three. Plea : Guilty. Findings : Guilty.
Specification 6: Did, on or about 2130, 24 August 1990, without authority, fail to go at the time prescribed to his appointed place of duty, to wit: Extra duty muster in Hangar Bay Three. Plea : Guilty. Findings : Guilty.
Specification 7: Did, on or about 0630, 25 August 1990, without authority, fail to go at the time prescribed to his appointed place of duty, to wit: Extra duty muster in Hangar Bay Three. Plea : Guilty. Findings : Guilty.
Specification 8: Did, on or about 1130, 25 August 1990, without authority, fail to go at the time prescribed to his appointed place of duty, to wit: Extra duty muster in Hangar Bay Three. Plea : Guilty. Findings : Guilty.
Specification 9: Did, on or about 1600, 25 August 1990, without authority, fail to go at the time prescribed to his appointed place of duty, to wit: Extra duty muster in Hangar Bay Three. Plea : Guilty. Findings : Guilty.
Specification 10: Did, on or about 1800, 25 August 1990, without authority, fail to go at the time prescribed to his appointed place of duty, to wit: Extra duty muster in Hangar Bay Three. Plea : Not Guilty. Findings : Not Guilty.
Specification 11: Did, on or about 2130, 25 August 1990, without authority, fail to go at the time prescribed to his appointed place of duty, to wit: Extra duty muster in Hangar Bay Three. Plea : Guilty. Findings : Guilty.
Specification 12: Did, on or about 0730, 26 August 1990, without authority, fail to go at the time prescribed to his appointed place of duty, to wit: Extra duty muster in Hangar Bay Three. Plea : Not Guilty. Findings : Not Guilty.
Specification 13: Did, on or about 1130, 26 August 1990, without authority, fail to go at the time prescribed to his appointed place of duty, to wit: Extra duty muster in Hangar Bay Three. Plea : Not Guilty. Findings : Not Guilty.
Specification 14: Did, on or about 1600, 26 August 1990, without authority, fail to go at the time prescribed to his appointed place of duty, to wit: Extra duty muster in Hangar Bay Three. Plea : Not Guilty. Findings : Not Guilty.
Specification 15: Did, on or about 1800, 26 August 1990, without authority, fail to go at the time prescribed to his appointed place of duty, to wit: Extra duty muster in Hangar Bay Three. Plea : Not Guilty. Findings : Not Guilty.

Specification 16: Did, on or about 0645, 6 August 1990, without authority, absent himself from his appointed place of duty, to wit: X-3 Division Admin Office located on board USS THEODORE ROOSEVELT (CVN 71). Plea : Not Guilty. Findings : Not Guilty.
Specification 17: Did, on or about 0700, 13 August 1990, without authority, absent himself from his appointed place of duty, to wit: X-3 Division Security Office located on board USS THEODORE ROOSEVELT (CVN 71). Plea : Not Guilty. Findings : Not Guilty.
Specification 18: Did, on or about 0700, 14 August 1990, without authority, absent himself from his appointed place of duty, to wit: X-3 Division Security Office located on board USS THEODORE ROOSEVELT (CVN 71). Plea : Not Guilty. Findings : Not Guilty.
Specification 19: Did, on or about 0700, 15 August 1990, without authority, absent himself from his appointed place of duty, to wit: X-3 Division Security Office located on board USS THEODORE ROOSEVELT (CVN 71). Plea : Not Guilty. Findings : Not Guilty.
Charge II: violation of UMCJ, Article 91: (2 specifications), Specification 1: Having received a lawful order from AC2 M_ J. A_, USN, then known by the said MSSR P_(Applicant) to be a superior petty officer, to report to Compartment 20118-4L and conduct field day, an order which it was his duty to obey, did on board USS ROOSEVELT (CVN 71), on or about 7 July 1990, willfully disobey the same. Plea : Not Guilty. Findings : Not Guilty.
Specification 2: Having received a lawful order from AC2 M_ J. A_, USN, then known by the said MSSR P_(Applicant) to be a superior petty officer, to report to Security Admin Office and conduct field day, an order which it was his duty to obey, did on board USS ROOSEVELT (CVN 71), on or about 10 July 1990, willfully disobey the same. Plea : Not Guilty. Findings : Guilty, excepting the words “report to Security Admin Office and.” Of the excepted words: Not Guilty. Of the Specification as amended: Guilty.
         Sentence: Confinement for 80 days, forfeiture of $275.00 pay per month for 3 months, Bad Conduct discharge.
         CA: 901231: Requested CA action be taken by Officer exercising GCM Jurisdiction.
         SA: 910305: Approved and, except for that portion of the sentence pertaining to the BCD, ordered executed. CHL in excess of 75 days suspended for 1 year.

901211: Applicant to appellate leave

901211: Applicant waived clemency review.

901211: Appellate review complete.

901211: Applicant declined Alcohol/Drug Dependency Rehabilitation at a VA Hospital prior to discharge. [Record contains no record of Drug or Alcohol dependency to indicate why treatment was offered].

911003: NMCCMR: The findings of guilty and sentence, as approved on review, are affirmed.

911210: COMA: Request for appeal denied.

920602: SSPCMO: Article 71c, UCMJ, having been complied with, Bad Conduct discharge ordered executed.

940125: NDRB documentary record review Docket Number ND94-00568 conducted. Determination: discharge proper and equitable; relief not warranted.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19920602 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 sufficient to merit clemency (C).

The Applicant contends that his bad conduct discharge was inequitable in light of his psychological issues and therefore requests an upgrade to his discharge characterization to honorable. In response to the Applicant’s issue, 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. The Applicant’s case was considered under the pertinent standards of equity to determine if any factors in this particular case merited clemency. SECNAVINST 5420.174D allows the board to evaluate certain factors in assisting them to have a more thorough understanding of the performance of an Applicant during the period of service. In the Applicant’s case the Board considered the Applicant’s capability to serve. The NDRB found the evidence of record contained sufficient mitigating or extenuating factors to offset the seriousness of the offenses for which the discharge was awarded. The Board found that the Applicant’s below average AFQT scores and considerable psychological problems impacted his ability to serve, adjust to military life and contributed to his misconduct in service. After a thorough review of the Applicant’s record, medical documentation, credible testimony from the Applicant and his witness, and facts and circumstances unique to this case, the Board determined by a vote of 3-2 that partial relief is warranted based on equitable grounds.

The following is 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 86: unauthorized absence, 90: willful disobedience of a superior commissioned officer, 91: disrespect towards a petty officer, 92: failure to obey a lawful order, 128: assault, and 134: drunk and disorderly.

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 Instruction 1332.28, you may submit a complaint in accordance with Enclosure (5) of that Instruction . You should read Enclosure (5) of the Instruction 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 Instruction 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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NAVY | DRB | 2006_Navy | ND0600312

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