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NAVY | DRB | 2006_Navy | ND0600429
Original file (ND0600429.rtf) Auto-classification: Denied


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

ex-FR, USN
Docket No. ND06-00429

Applicant’s Request
The application for discharge review was received on 20060125 . The Applicant requests the Discharge Characterization of Service received at the time of discharge be changed to honorable and the Narrative Reason for Separation be changed to “ RECODE ” 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 20061130 . 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 ization of the discharge and the narrative reason 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:

“ Respectfully request change of bad conduct discharge into an honorable discharge, also please change my separation code:jjd/901 and re-entry code of re4. I have also enclosed other documents on my behalf, hopefully benefiting my cause also to try persuade your decision for the good. ”

Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant’s DD Form 214
 Reference ltr from A_ R_, undated
Reference ltr from Staff Sergeant R_ W_, undated
 Statements from Applicant (2)
 Reference ltr from SFC T_ W. O_, Career Counselor Office of the Adjutant General Commonwealth of Pennsylvania, dated May 1, 2006
 Character Reference ltr from J_ W_, dated March 22, 2006
Computerized Criminal History File Response

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     20000330 – 20000411               COG
          Active: None

Period of Service Under Review :
Date of Enlistment: 20000 4 12              Date of Discharge: 20030515

Length of Service (years, months, days):

          Active: 0 3 0 1 15 (Does not exclude lost time.)
          Inactive: None

 Time Lost During This Period (days):
         Unauthorized absence: 107 day s
         Confinement:              20 days

Age at Entry: 20

Years Contracted: 4

Education Level: 12                                 AFQT: 32

Highest Rate: FN

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): None

 * Not Available


Character, Narrative Reason, and Authority of Discharge (at time of issuance):
COURT MARTIAL, authority: NAVMILPERSMAN, Article 5815-010 (formerly 3640420).
Chronological Listing of Significant Service Events :

001108:  Applicant to unauthorized absence at 0700 on 001108.

 001109:  Applicant from unauthorized absence at 0700 on 001109 (1 days/surrendered).
010319:  NJP for violation of UCMJ, Article 128 : Assault on 010319 .
 Award: Forfeiture of $ 3 00 .00 pay per month for 2 month s (susp 1 mon x 3 mos) , confinement on bread and water x 2 days. No indication of appeal in the record

010322:  Retention Warning: Advised of deficiency (CO’s NJP held 010319 for violation of the UCMJ, Article 128 Assault.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.
010723:  Applicant to unauthorized absence at 0700 on 010723.

010731:  Applicant missed ship’s movement.

010811:  Applicant declared a deserter.

 011106:  Applicant from unauthorized absence at 2130 on 011106 (106 days/surrendered).
011106:  Applicant in pre-trial restriction from 011106 to 001113.
020313 :  Special Court Martial
          Charge I: violation of the UCMJ, Article 86: In that Fireman Apprentice K_ J. M. P_ (Applicant), U.S. Navy, USS THEODORE ROOSEVELT, on active duty, did on or about 010723, without authority, absent himself from his unit, to wit: USS THEODORE ROOSEVELT located at Norfolk, Virginia and did remain so absent until on or about 011106. Plea: Guilty. Finding: Guilty.
         Charge II: violation of UMCJ, Article 87: In that Fireman Apprentice K_ J. M. P_, U.S. Navy, USS THEODORE ROOSEVELT, on active duty, did on or about 010731, through design miss the movement of USS THEODORE ROOSEVELT with which he was required in the course of duty to move . Plea: Guilty, excepting the language, “through design,” substituting therefore the language, “by neglect.” To the Specification, as excepted and substituted, Guilty. Plea: Guilty, except the words, “through design” and substituting therefore the words, “through neglect.” Of the Specification excepted and substituted, Guilty.
         Additional Charge: violation of the UCMJ, Article 134: In that Fireman Apprentice K_ J. M. P_, U.S. Navy, USS THEODORE ROOSEVELT, on active duty, did, at Naval Station Norfolk, on or about 000922, wrongfully receive and conceal a compact disc player, of some value, the property of Petty Officer First Class T_ W_, U.S. Navy, which property, as he, the said Fireman Apprentice K_ J. M. P_, U.S. Navy, then knew had been stolen. Plea: Guilty. Finding: Guilty.
         Sentence: Confinement for 11 0 days, and a Bad Conduct discharge.
          CA 0 20715 : T he sentence is approved and, except for that 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 ninety (90) days is suspended for 12 months from the date of this action, at which time, unless the suspension is sooner vacated, the suspended part of the sentence will be remitted without further action .
         
0 30114 :  NMCCCA: The findings of guilty and sentence, as approved on review,
         are affirmed.
0 30428 :  Appellate review complete.
0 30506 :  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 in absentia on 20030515 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 offenses he committed. Relief denied.

The Applicant also requested to have his re-entry code change to RE-4. 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. The Naval Military Personnel Manual, (NAVPERS 15560C), re-issued October 2002, effective 22 Aug 2002 until 8 Sep 2004, Article 5815-010 (formerly 3640420), Executing a Dishonorable or Bad Conduct Discharge.

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 violations of the UCMJ, Articles 86 (Unauthorized absence for more than 30 days), 87 (Missing movement), 128 (Assault) and 134 (Stolen property, knowingly receiving, buying, concealing).

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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