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

 ex-AR, USN
Docket No. ND99-01230

Applicant’s Request

The application for discharge review, received 990921, requested that the characterization of service on the discharge be changed to general/under honorable conditions and the reason for the discharge be changed to Medical Separation.  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 000530.  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 (verbatim)

1.  That I have three Honorable Separations from the Department of Defense on the length of seven years of Service (Refer to document # 1(a)).

2.  That I was suffering of Severe Adjustments, Anxiety, Paranoids and Personality Disorders with Major Depression together with some personal problems and attempts suicide before the AWOL situation happens. (Refer to documents #2 (a), (b), (c), (d).

3.  That if the U.S. Navy provides me with the appropriate and adequate treatment to my conditions on time and follow the medical recommendation to separate me with a Medical Discharge the AWOL situation should never been happens.  (Refer to document #2 (a), (b), (c), (d).

4.  That Unfortunately at the 15th day that I was under the AWOL situation I was apprehended by the Jonesboro, Arkansas State Police due to minor offense (case num CR.89307), but inmideatly my girlfriend and I discloses to such civilian authorities about my military status and like the normal procedures is to release the individual to military control such civilian authorities informed to my command of my legal situation, but failure to none military authorities appears to pick me up I was detained until final disposition of my civilian charge (Refer to document #2 (d).

5.  That for the reason explained on issue #4, the U.S. Navy legal division made an error on charge as AWOL for a period of 56TH days and based on the UCMJ none bad-conduct discharge is proper on this case (Refer to documents #3 (a), (b), (c).   

Documentation

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

Copies of DD Form 214 (3)
Copies from Medical Record (5pgs)
Copies of Military References (3pgs)
Letter from Department of Veterans Affairs (2)
Letter from Department of Veteran Affairs
Letter to NDRB in reference to Service Record
Copy of Honorable Discharge Certificate
Copy of Report of Separation and Record of Service
Copy of Discharge Orders
Letter to NDRB in reference to Criminal Docket NUM: CR-89307
Copy of Applicant's Mailing Address
Copy of Criminal Docket from Jonesboro District, Craighead County Arkansas Court
Copy of Military Reference       

PART II - SUMMARY OF SERVICE

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

	Active:   USN 		None
	Inactive: USAR		800711-801205	HON
	Inactive: USNR (DEP)	890222 - 890308	COG

Period of Service Under Review:

Date of Enlistment:  890309		Date of Discharge:  920403

Length of Service (years, months, days):

	Active:    02  06  11
	Inactive:  None

Age at Entry:  26			Years Contracted:  4 

Education Level:  12			AFQT:  43

Highest Rate:  AA

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  NOB		Behavior:  NOB		OTA:  NOB

Military Decorations:  None

Unit/Campaign/Service Awards:  None 

Days of Unauthorized Absence:  75 

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:

890926:	NJP for violation of UCMJ, Article 92: Failure to obey order or regulation.
	Award:  Restriction for 30 days,  and extra duty for 14 days.  No indication of appeal in the record.

891011:	Report of Declaration of Deserter (NAVPERS 1600-3).  Applicant declared a deserter on 891011 having been an unauthorized absentee since 0630, 890929 from Helicopter Antisubmarine Squadron Nine.

891017:	Report of Return of Deserter.  Applicant apprehended by military authorities on 891016 (2200) at Enlisted Club onboard NAS JACKSONVILLE, FL.  Returned to military control 891016 (2230).  Retained onboard for disciplinary action.

891019:	Retention Warning:  Advised of deficiency (Failure to obey order/regulation and unauthorized absence), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 

891019:	NJP for violation of UCMJ, Article 86: Unauthorized absence from 890929 to 891016 (17days/A), violation of UCMJ Article 90: Disobeyed a lawful order.
	Award:  Forfeiture of $349.00 per month for 2 months, restriction to NAS Jacksonville, FL for 60 days, reduction to E-1.  No indication of appeal in the record.

891221:	Civil conviction at State of Arkansas, County of Craighead, County Court for driving to left of center, fleeing, DWI, speeding in excess of 100 MPH, vehicular assault and criminal impersonation.
	Sentence to 1 year confinement (suspended), and $1,000.00 fine.

891221:	Pretrial Restraints 891211 to 891228; in route from Jonesboro, Arkansas.

891222:	Report of Return of Deserter.  Applicant apprehended by civil authorities on 891112 (0044) at Jonesboro, AR. Returned to military control 891221 (1320).  Orig retains custody pending transfer to NACU Jacksonville, FL.

900104:	Joined NAS Jacksonville brig, for confinement.

900221:	From confinement.

900221:	Special Court Martial [trial date 900221]
	Charge I:  violation of the UCMJ, Article 86, Without authority absent himself from his unit 891024 to 891221 (58days/A), Charge II: violation of the UCMJ, Article 134, Break restriction.  
	Findings:  to Charge I plead not guilty to Article 85, but guilty to Article 86, to Charge II, guilty.
	Sentence:  CHL for 4 months, forfeiture of $482.00 per month for 4 months, Bad Conduct discharge.
	CA 900714:  Sentence approved and ordered executed, except for bad conduct discharge.
	
901002:	NC&PB clemency not granted; restoration denied.

900520:	NMCCMR:  The findings of guilty and sentence, as approved on review, are affirmed.

910819:	COMA:  Request for appeal denied. 

920403:	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 920403 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).

In the applicant’s issues 1 through 5, relevant and material facts stated in a court-martial specification are presumed by the NDRB to be established facts.  With respect to a discharge or dismissal adjudged by a court-martial case tried under the Uniform Code of Military Justice, the action of the NDRB extends only to a change in the discharge or dismissal for purpose of clemency. (B, art IV).  At this time, the applicant has not provided any documentation of good character and conduct.  Therefore no relief will be granted. 

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 view DoD Directive 1332.28 and other Decisional Documents by going online at "afls14.jag.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:

		Naval Council of Personnel Boards
		Attn:  Naval Discharge Review Board
		720 Kennon Street SE Rm 309
		Washington Navy Yard DC  20374-5023