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NAVY | DRB | 2006_Navy | ND0600342
Original file (ND0600342.rtf) Auto-classification: Denied



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

ex-AR, USN
Docket No. ND06-00342

Applicant’s Request
The application for discharge review was received on 20051227. The Applicant requests the Discharge Characterization of Service received at the time of discharge be changed to honorable. The Applicant request ed a documentary record discharge review. The Applicant did not designate a representative on the DD Form 293. On 20060213, the Applicant contacted the NDRB by telephone and requested a personal appearance hearing. Prior to the personal appearance hearing, the Applicant agreed to a documentary discharge review in light of the fact that sufficient time remained for Applicant to request a personal hearing should the results of the documentary review not be to the Applicant’s satisfaction .

Decision

A documentary discharge review was conducted in Washington, D.C. on 20061012 . 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 letter:

“I am requesting an upgrade in order to get back in service. I feel that I would be justified because I have been a good citizen and have kept my self clean.”

“Dear Sir, (s)

 This letter is in regard to upgrading my discharge status. At present it is a Bad Conduct Discharge. I joined the Navy in July, 1990. I went to basic training at Great Lakes, Ill. I was stationed at Norfolk, VA, on the Air Craft Carrier, Dwight D. Eisenhower. CVN 69. I went A.W.O.L because my father died just before I left for basic. My grandmother which is my mothers mom was dying and it was a big strain on my mom as well as me. I acted foolishly and I left on my own. I was remanded into custody by the Robeson County Sheriff Dept. of North Carolina, and I was turned over to the Navy. I was Court marshalled and I was given a Bad Conduct Discharge. I am currently seeking assignment in the Army National Guard. I am a automobile mechanic at Pembroke Tire. I have worked there for 8 years. I am also a Certified Substitute teacher, in hopes of becoming a full time school teacher. In closing, thank you for listening to my appeal in association with these matters.
(signed )
J_ C_ M_
 SSN ( SS# redacted ) ”

Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant’s DD Form 214 (Service 2)
Letter from R_ S_, North Carolina General Assembly, House of Representatives, dtd        December 8, 2005 (2 pgs)
Letter of Recommendation from Rev. E_ C_, dtd December 12, 2005
Letter of Recommendation from G_ C_, dtd December 1, 2005

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     19900406 – 19900709      COG
         Active: None

 Period of Service Under Review :
Date of Enlistment: 19900710             Date of Discharge: 19921120

 Length of Service (years, months, days):

          Active: 02 04 1 1 (Does not exclude lost time.)
          Inactive: None

 Time Lost During This Period (days):

         Unauthorized absence: 454 days
         Confinement:              46 days

 Age at Entry: 22

 Years Contracted: 4

Education Level: 12                                 AFQT: 32

 Highest Rate: AR

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: NA*                           Behavior: NA*             OTA: NA*

 Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214): National Defense Service Medal.
* Not Applicable


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 :

901105:  Applicant to unauthorized absence this date.

 901204:  Applicant declared a deserter.
92020 3 :  Applicant apprehended by civil authorities at Lumberton, NC.

920318:  Special Court Martial , Charge: V iolation of the UCMJ, Article 86.
          Specification: In that Airman Recruit J_ C. M_, U.S. Navy, Transient Personnel Unit, Norfolk, Virginia, on active duty did, on or about 5 November 1990, without authority, absent himself from his unit, to wit: USS DWIGHT D. EISENHOWER, located at Norfolk, Virginia, and did remain so absent until he was apprehended on or about 3 February 1992. Plea: Guilty. Finding: Guilty.
          Sentence: Confinement for 75 days, forfeiture of $250.00 pay per month for 2 months, Bad Conduct Discharge.
          CA 920430: Sentence approved and, except for the part of the sentence extending to a bad conduct discharge, will be executed. In accordance with the terms of the pre-trial agreement the execution of that portion of the sentence adjudging confinement in excess of 60 days is hereby suspended for a period of 12 months from the date of the trial, at which time, unless the suspension is sooner vacated, the suspended portion of the sentence will be remitted without further action.
        
920318:  Joined Naval Brig, Naval Station, Norfolk, Virginia for confinement.

920503:  From confinement, restored to full duty.

920717:  Applicant to appellate leave.

 920813:  N avy-Marine Corps Court of Military Review affirms finding of guilty and sentence, as approved.
921104:  Appellate review complete.
921120:  S upplemental Special Court-Martial Order: 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 19921120 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 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. 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 offense he committed. Relief denied.

The following is provided for the edification of the Applicant. Normally, to permit relief, a procedural impropriety or inequity must have occurred during the discharge process for the period of enlistment in question. As noted above, with respect to a discharge adjudged by a court-martial case, the action of the NDRB is restricted to upgrades based on clemency. 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 civilian life subsequent to leaving Naval service. The NDRB is authorized to consider post-service factors in the recharacterization of a discharge to the extent such matters provide a basis for a more thorough understanding of the Applicant’s performance and conduct during the period of service under review. Examples of documentation that should be provided to the Board include proof of educational pursuits, verifiable employment records, documentation of community service, and certification of non-involvement with civil authorities. As of this time, the Applicant has not provided sufficient post-service documentation for the Board to consider. Relief denied.

In regards to the Applicant’s desire to “get back in service”, the NDRB has no jurisdiction over reenlistment, reentry, or reinstatement into the Navy, Marine Corps, or any other of the Armed Forces. The 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), 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 for more than 30 days).

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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