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

ex-AOAR, USN
Docket No. ND99-00923

Applicant’s Request

The application for discharge review, received 990629, requested that the characterization of service on the discharge be changed to honorable.  The applicant requested a personal appearance hearing discharge review before a traveling panel closest to San Antonio, TX.  The applicant listed AMVETS as his representative on the DD Form 293.  In the acknowledgement letter to the applicant, he was informed that the Naval Discharge Review Board (NDRB) first conducts a documentary review prior to any personal appearance hearing.

Decision

A documentary discharge review was conducted in Washington, D.C. on 000411.  After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, NDRB discerned no impropriety or inequity in the characterization of the applicant’s service.  The Board’s vote was unanimous that the character of the discharge shall not change.  The discharge shall remain: BAD CONDUCT/COURT MARTIAL CONVICTION, authority: NAVMILPERSMAN, Article 3640420.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues (verbatim)

1. I am requesting an upgrade from Bad Conduct to Honorable.  I feel I did not warrant a Bad Conduct due to the nature of the Court-Martial.  I did not due anything to deface the United States Navy, nor any other crime to hurt anyone.

I was convicted of Unauthorized Absence.  If you look at the facts in this case, you will find that a Bad Conduct was not warranted.  I was UA due to my marriage.  Let me explain.  I came from a broken home, where my Father was in The US Air Force, when my mother left my sister and I at the age of eleven.  I was very close to my mother, and the event changed my life forever.  I had a hard time as a youth growing up do to the fact of having to be the Dad at home when my father was away of TDY.  I was given a Hardship Driver's License at the age of 15 from the Texas Department of Transportation.

My Senior Year, 1989, at Del Valle High School, my girlfriend got pregnant; I was 17.  Upon graduation, her and I moved to Dover, Delaware, from which she was originally.  I worked two full time jobs in order to support my flanc6e and my daughter.  The times got hard due to me working so much, and she began complaining that I didn't spend much time at home.  I did what many other boys due, and joined the Military.  I figured I would work a regular job with good pay and have good benefits for my family.

Two weeks into Basic Training, I received a "Dear John" letter, and was devastated.  I was given the option in Basic to just get out due to the hardship.  I was sent to see a Psychologist on the base at RTC San Diego.  I was given a phone call, which I used to call my fiancée.  She told me "My Grandmother said you were a loser", and because of that, I vowed to continue through with the Navy.  The relationship between her and I became very distant over a two year period.  I worked very hard at what I did as an Aviation Ordinanceman; my records will show that.

About that time, I got married to a girl from Ohio.  I knew things were going to be great, even though I missed my daughter, and still loved her mother.  Somehow I just needed someone there with me, perhaps the mother that left me.  As our relationship blossomed, she began to write to me in letters that she was pregnant.  I was ecstatic, because I felt I was going to be a Dad, with a woman who was going to love me forever.  Then I got the news that she had a miscarriage, so I went UA to Ohio to be with her.  I went UA, because I was not granted leave.  When I returned, I was put on report, and was required to stay on board and no liberty.  The ship was in dry dock.

After time, I received another letter saying she was again pregnant with twins.  Again I was happy.  I legitimately took leave to go see her in order to move her down to Virginia.  The leave request took about fifteen days to go through, but never the less it was approved.  When I arrived in Ohio, she gave me the news that she had another miscarriage.  I felt that the world hated me.  I tried to commit suicide, and was admitted

to a hospital in Lorain, Ohio.  I was admitted into a "Psycho Ward" and was kept there for a week, after being in ICU for two days.  I was diagnosed as being a manic depressant, and was give a prescription of Zoloft.  This time when I returned to Norfolk I was given a Court-Martial and awarded 130 days in the Brig, and a Bad Conduct Discharge.

While I was in the Brig, I began to find out disturbing things about my wife.  I found out that she was never able to have kids, and that all the time she had been lying about her pregnancies.  I felt the Navy was at fault for all my problems, first losing the mother of my daughter and my daughter, my unborn children, my marriage.  I just wanted to get home, and for that reason I never appealed anything.

Now I realize how important an Honorable Discharge is.  I applied for the San Benito Police Department.  Of 140 applicant, I was in the final 5. 1 would have been hired, but was told due to my discharge, I was unable to be licensed by The State of Texas.  They were willing to send me to the Academy.  Now my License from the Texas Board of Private Investigators and Security is going to be revoked due to my discharge status.

I have been extensively involved in my community.  I am currently a Head Football Coach for The Brownsville Boy's and Girl's Club.  This is my second year.  I have coached P.O.N.Y. Baseball for two years and B.O.Y.S.A. Soccer for one.  I am the Secretary for the Saint Luke's Men's Club which hold fundraisers in order to raise money to award scholarships.  I have been a member for four years.

I am a full time student at the University of Texas at Brownsville.  I currently have 48 accumulative hours.  My major is Criminal Justice with a minor in psychology.  I am running a current GPA of 3.4, and was awarded the Academic Excellence Award in Speech for doing a presentation on The U.S. Navy SEALS.  It is on video if you wish to see it.  I have never broken any laws other than the code of uniform justice in which I was Court-martialed.

I have never defaced nor talked bad of the Navy.  I have helped the Navy in telling people of my adventures, and how much I enjoyed it.  I even went to Pace High School Government class and spoke of my experiences.  Not once did I in any way paint a negative picture.

I hope you find that I do not warrant the continued punishment I am receiving.  I hope you will change my discharge to Honorable, so I continue to serve my community in the most important role, a law enforcement officer.

Documentation

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

Reference Letter from Director of Brownsville Boy's and Girl Club
Employment Reference Letter from Media Center Administrator
Copy of DD Form 214
Pictures (Boy scouts, football, soccer, baseball, Confederate Air Force Air Show)
Scholastic Excellence Award
Copy of Texas Paraprofessional Certificate
Another Letter of Explanation (2pgs)
Police Record Check
Employment Reference Letter
Copy of Security Officer Commission Identification
Copy of Private Security Officer Certificate of Completion
Copy of Level One Training Course Certificate of Completion
Copies of Job Description/Performance Evaluations (18pgs)
Copy of Winter Model Schools Conference Certificate
Copy of Certificate of Recognition
Copy of Marriage License (3pgs)

PART II - SUMMARY OF SERVICE

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

	Active:   USN 		None
	Inactive: USNR (DEP)	890829 - 891205	COG

Period of Service Under Review:

Date of Enlistment:  891206		Date of Discharge:  940324

Length of Service (years, months, days):

	Active:    03  03  28
	Inactive:  None

Age at Entry:  18			Years Contracted:  4

Education Level:  12			AFQT:  43

Highest Rate:  AOAN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.80 (1)	Behavior:  3.60 (1)		OTA:  3.80

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM, SASMwb*

Days of Unauthorized Absence:  291 

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:

911217:	Report of Declaration of Deserter (NAVPERS 1600-3).  Applicant declared a deserter on 911104 having been an unauthorized absentee since 1600, 911004 from USS THEODORE ROOSEVELT (CVN-71).

920107:	Report of Return of Deserter.  Applicant apprehended by civil authorities on 920104 (2235) at Rockwall, TX. Returned to military control 920104 (2235).  Orig retains custody pending transfer to NACU Norfolk, VA.

920303:	Special Court Martial [trial date 920303]
	Charge I: violation of the UCMJ, Article 86: Unauthorized absence 911004 – 920104, [92 days/A.].
	Findings:  to Charge I and specification 1 thereunder, guilty.
	Sentence:  Confinement for 30 days, restriction to the limits of USS THEODORE (CVN-71) for 30 days, and hard labor without confinement for 30 days to run concurrently, Bad Conduct discharge.
	CA 920424:  Sentence approved and ordered executed.
	
920323:	From confinement; and returned to full duty.

920613:	Report of Declaration of Deserter (NAVPERS 1600-3).  Applicant declared a deserter on 920605 having been an unauthorized absentee since 0530, 9205064 from USS THEODORE ROOSEVELT (CVN-71).

920713:	Report of Return of Deserter.  Applicant surrendered to military authorities on 920629 (1100) at PSD CLEVELAND, OH. Returned to military control 920629 (1100).  Delivered onboard USS THEODORE ROOSEVELT (CVN-71) by Hampton Area shore patrol at 2208, 920629.  Retained onboard for disciplinary action/disposition.

930129:	Special Court Martial [trial dates 930129]
	Charge I: violation of the UCMJ, Article 86: (3 Specifications),Unauthorized absence 920503 – 920505, [2 days/A.], Unauthorized absence 920506 - 920629 [53 days/S], Unauthorized absence 920804 - 921224 [144 days/S].  Charge II: violation of the UCMJ, Article 87: (2 Specifications), Missing Movement of USS THEODORE ROOSEVELT through neglect on 920515 and 920807.
	Findings:  to Charge I and specifications 1 through 3, thereunder, guilty, to Charge II and specification 1 and 2, thereunder, guilty.
	Sentence:  Confinement for 60, reduction to E-1, and a bad conduct discharge .
	CA 930405:  Sentence is approved, except for the part of the sentence extending to a bad conduct discharge will be executed.  The execution of that portion of the sentence adjudging confinement in excess of 45 days is hereby suspended for 12 months from the date of the trial, unless sooner vacated, the suspended portion of the sentence will be remitted without further action.

930129:	To confinement.

930307:	Released from confinement and restored to full duty status.
		
931021:	NC&PB clemency not granted; restoration denied.

931207:	NMCCMR:  The findings of guilty and sentence, as approved on review, are affirmed.

940324:	SSPCMO:  Article 71c, UCMJ, having been complied with, Bad Conduct discharge ordered executed.		

950731:	USCAAF:  Request for appeal denied.  

PART III – RATIONALE FOR DECISION AND PERTINENT 
REGULATION/LAW

Discussion

The applicant was discharged on 940324 with a bad conduct due to court martial conviction (A).  The Board presumed regularity in the conduct of governmental affairs (B).  After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, the Board found that the discharge was proper and equitable (C and D).

In response to applicant’s issue 1, 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.  The applicant's case was considered under the pertinent standards of equity to determine if any factors in this particular case merited clemency.  The NDRB found the applicant’s service record devoid of any mitigating or extenuating factors sufficient to offset the seriousness of the offenses for which the discharge was awarded.  Outstanding post-service conduct, to the extent that such matters provide a basis for a more thorough understanding of the applicant’s performance and conduct during the period of service under review, can be considered.  In determining whether a case merits a change based on post-service conduct, the NDRB considers the length of time since discharge, the applicant's record of community service, employment, conduct, educational achievements, and family relationships.  In reviewing the applicant’s post service, the Board was impressed with the efforts he has begun to make in attempting to recoup his reputation which has been sullied by his misconduct in the Navy.  However, relief will not be granted at this time.  The applicant is reminded that he remains eligible for a personal appearance hearing provided the application is received within 15 years from the date of discharge.  Representation at a personal appearance hearing is highly recommended. Verifiable documentation of post-service is essential.  The applicant is encouraged to continue his community service and apply for a personal appearance hearing prior to 24 March, 2009. 

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.  Secretary of the Navy Instruction 5420.174C of 22 August 19984 (Manual for Discharge Review, 1984) enclosure (1), Chapter 2, paragraph 2.24, COURT-MARTIAL SPECIFICATION, PRESUMPTION CONCERNING.

C.  Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 9, paragraph 9.2, PROPRIETY OF THE DISCHARGE.

D.  Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 9, paragraph 9.3, EQUITY OF THE DISCHARGE.

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 obtain a copy of DoD Directive 1332.28 by writing to:

		DA Military Review Boards Agency
		Management Information and Support Directorate
		Armed Forces Reading Room
		Washington, D.C.  20310-1809

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:

		Naval Council of Personnel Boards
		Attn:  Naval Discharge Review Board
		Washington Navy Yard
		720 Kennon Street SE Rm309
		Washington, D.C.  20374-5023