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

               

 ex-ISSR, USN
Docket No. ND99-01110

Applicant’s Request

The application for discharge review, received 990817, requested that the characterization of service on the discharge be changed to general/under honorable conditions.  The applicant requested a documentary record discharge review.  The applicant did not list any representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 000427.  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/Convicted by special court martial, authority: NAVMILPERSMAN, Article 3640420.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

1. I am requesting a review of my discharge due to the fact I thought I was unfairly charged with breaking restriction and desertion because I remained on the premises of the restricted base.  Although I did work at McDonald's without permission, I did not leave my area of restriction and only worked due to the fact that I was not receiving pay at the time.  I did complete my stay at Navy Brig, Philadelphia, PA and was released in late Oct, 1990.  However, I do not feel that this severe discharge status was warranted by my actions.

Documentation

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

None

PART II - SUMMARY OF SERVICE

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

	Active:   USN 		None
	Inactive: USNR (DEP)	870930 - 880508	COG

Period of Service Under Review:

Date of Enlistment:  880509		Date of Discharge:  911001

Length of Service (years, months, days):

	Active:    02  11  11
	Inactive:  None

Age at Entry:  22			Years Contracted:  4

Education Level:  13			AFQT:  82

Highest Rate:  ISSN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  1.00 (1)	Behavior:  1.00 (1)		OTA:  1.00

Military Decorations:  None

Unit/Campaign/Service Awards:  None 

Days of Unauthorized Absence:  189 

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:

880701:	Retention Warning:  Advised of deficiency (Defective enlistment and induction to due to fraudulent entry into naval service as evidenced by your failure to disclose your pre-service involvement with civil authorities prior to entry into the naval service), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 

891103:	Report of Declaration of Deserter (NAVPERS 1600-3).  Applicant declared a deserter on 891103 having been an unauthorized absentee since 0730, 891004 from COMSUBPAC PEARL HARBOR, HI.

900104:	Pretrial Restraints 900104-900327, 900705

900405:	Report of Return of Deserter.  Applicant surrendered to military authorities on 900103 (1715) at NAS ATLANTA, GA. Returned to military control 900103 (1715).  Transferred under TAO'S issued by PSD NAS ATLANTA, GA to TPU CHARLESTON, SC for disciplinary action/disposition. (Report is a resubmission due to non-receipt of original)

900402:	Report of Declaration of Deserter (NAVPERS 1600-3).  Applicant declared a deserter on 900327 having been an unauthorized absentee since 1505, 900327 from TRANSITPERSU NAVSTA CHARLESTON, SC.
	
900705:	Report of Return of Deserter.  Applicant apprehended by civil authorities on 900703 (1530) at LA GRANGE, GA.  Returned to military control 900703 (1530).  Orig will retain custody of SNM pending transfer to parent command.

900807:	Special Court Martial [trial dates 900806 – 900807]
	Charge I: violation of the UCMJ, Article 86, (2) Specifications.
	Specification 1:  Unauthorized absence 891004-900103, [91 days/S.]
	Specification 2:  Unauthorized absence 900327-900703, [98 days/A.]. Charge II: violation of UCMJ, Article 91, Willfully disobeyed a lawful order issued by a Master Chief Petty Officer to stop.  Charge III: violation of the UCMJ, Article 107, (2) Specifications, With intent to deceive , sign an official record.  Charge IV: Break said restriction 900328 from NAVSTA CHARLESTON, SC.  
	Findings:  to Charge I and specifications 1 and 2 thereunder, guilty, to Charge III and specification 1 and 2 thereunder, not guilty, to Charge IV and specification 1 thereunder, guilty. 
	Sentence:  CHL for 4 months, forfeiture of $200 per month for (4) months, reduction to E-1, Bad Conduct discharge.
	CA 910124:  Sentence approved and ordered executed, except for bad conduct discharge.
	
901003:	Applicant waived clemency review.

910508:	NMCCMR:  The findings of guilty and sentence, as approved on review, are affirmed.

910124:	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 on 911001 with bad conduct due to convicted by special court martial (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).

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.  The applicant is reminded that she remains eligible for a personal appearance hearing provided that an application is received within 15 years from the date of discharge.

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 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 Rm 309
		Washington, D.C.  20374-5023