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

 ex-AR, USN
Docket No. ND99-01235

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.  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 000616.  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 interrogated by NIS agents, T. J. G______ and M. G. M_____ regarding the matter.  To the best of my knowledge, neither agent advised me of my Constitutional rights at any time.  Legal Counsel on my behalf was never afforded to me, and the interview was conducted without the presence of such Counsel.  In addition, the interview was conducted while I was severely fatigued after having completed forty- eight hours of straight Able Seaman duty.  I was also in a state of highly emotional upheaval and depression because of highly personal matters.  

2.  While attempting to coerce a confession from me, without Counsel present, misleading promises/enticements were proffered by Agents G_______ and M______, i.e., probable transfer out of my assigned division on board and shore duty to be re-united with my newly-wed bride.  During the interview, I became so emotionally upset that I requested brief recess to compose myself and collect my thoughts.  I was denied a recess pending the solicitation of my confession.

3.  The agents produced documents for my signature.  The contents or what they implied were not explained to me, and since Counsel was not present, I signed the papers not knowing the consequences.

4.  The record of trial should be reviewed for mitigating factors.  The statement of the Military Judge in open court reflects that, "had you not signed the confession, I would have found you not guilty," while adjudging a Bad Conduct Discharge.  In addition, no witnesses or corroborating evidence exist to support the allegations.  

Documentation

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

Copies of DD Form 214 (2)
Reference Letter from Member First Credit Union President
Reference Letter from Rev R____ E. K_____
Personal Recommendation Letter
Reference Letter from U.S. Custom Special Agent J____ G. F___
Reference Letter from Department of Military Affairs Florida Army National Guard J____ D. S____ S.F.C. 

PART II - SUMMARY OF SERVICE

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

	Active:   USN			None
	Inactive: USNR (DEP)	820716 - 820725	COG

Period of Service Under Review:

Date of Enlistment:  820726		Date of Discharge:  860211

Length of Service (years, months, days):

	Active:    03  07  17
	Inactive:  None

Age at Entry:  17			Years Contracted:  4 

Education Level:  12			AFQT:  63

Highest Rate:  AA

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  2.60 (2)	Behavior:  2.10 (2)		OTA:  2.60

Military Decorations:  None

Unit/Campaign/Service Awards:  NEM 

Days of Unauthorized Absence:  None 

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:

830412:	NJP for violation of UCMJ, Article 86: Unauthorized absence from appointed place of duty.
	Award:  Oral Reprimand,  restriction and extra duty for 30 days (suspended for 3 months).  No indication of appeal in the record.

830427:	NJP for violation of UCMJ, Article 86: (2 Specs), Unauthorized absence from appointed place of duty, violation of UCMJ Article 116: Breech of peace.
	Award:  Oral reprimand, Correctional Custody for 30 days, reduction to E-1, punishment of restriction and extra duty for 30 days awarded at CO's NJP on 830403 is hereby vacated.  No indication of appeal in the record.

830427:	Retention Warning:  Advised of deficiency (Failure to adhere to Navy rules and regulations), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 

830624:	NJP for violation of UCMJ, Article 86: (2 Specs), Unauthorized absence  
	Award:  Written reprimand, forfeiture of $100.00 per month for 1 month.  No indication of appeal in the record.

830624:	Retention Warning:  Advised of deficiency (Misconduct due to frequent involvement of a discreditable nature with military authorities), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 

830930:	NJP for violation of UCMJ, Article 134: (3 Specs), Wrongfully carry a concealed weapon on or about 1400, 830917, violation of UCMJ Article 134: Communicating a threat on fellow shipmates on or about 1400, 830917 and on or about 830901.
Award:  Forfeiture of $150.00 per month for 1 month, restriction and extra duty for 15 days.  No indication of appeal in the record

840224:	NJP for violation of UCMJ, Article 86: Unauthorized absence from unit 1800, 840206 until 1800, 840207 (1day).
	Award:  Forfeiture of $150.00 per month for 1 month, restriction and extra duty for 5 days.  No indication of appeal in the record.

840919:	Special Court Martial [trial dates 840919]
	Charge I: violation of the UCMJ, Article 108, (2) Specifications.
	Specification 1: Willfully damage by knocking off the bulkhead to the deck one S-3 trial bar of some value, military property, Specification 2: Willfully destroy by knocking off the bulkhead to the deck one A-7 trial bar of a value more than $100.00, military property.  
	Findings:  to Charge I and specifications 1 and 2 thereunder, guilty.
	Sentence:  CHL for 100 days, forfeiture of $397.00 per month for 3 months, reduction to E-1, Bad Conduct discharge.
	CA 841227:  Sentence approved.
	
840919:	Joined Naval Station, Philadelphia, PA brig for confinement.

841101:	Applicant waived clemency review.

841211:	From confinement; to appellate leave.

850605:	NMCCMR:  The findings of guilty and sentence, as approved on review, are affirmed.

860103:	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 860211 with a bad conduct due to convicted by a 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 and 2, the Board determined these issues are without merit.  The applicant claims neither agent advised him of his constitutional rights; he was never afforded legal counsel; he was interviewed without counsel present; he was in a state of emotional upheaval and depression and he was denied recess pending solicitation of his confession.  Relevant and material facts stated in a court-martial shall be presumed by the NDRB, as established facts.  NDRB action may extend only to change the discharge for the purpose of clemency, in a discharge adjudged by a court-martial case, tried under the UCMJ.  Based on the records and documents pertinent to this case, the applicant did not provided sufficient documentation to justify clemency.  Relief denied.

In the applicant’s issue 3, the Board determined this issue is without merit.  The applicant states the NIS agents produced documents for his signature and he signed the papers not knowing the consequences.  The NDRB presumes the relevant and material facts stated in the court-martial are established facts.  The applicant signed a statement admitting to the offenses he was charged with in the court-martial.  The NDRB can only consider this case for the purpose of clemency.  The applicant did not provide sufficient documentation to warrant clemency.  Relief denied.

In the applicant’s issue 4, the Board determined this issue is without merit.  The applicant states the trial should be reviewed for mitigating factors.  The military judge made the statement “had you not signed the confession, I would have found you not guilty.”  Additionally, the applicant states there were no witnesses or corroborating evidence to support allegations.  The applicant signed a confession admitting to the offenses charged at Special Court-Martial and was ultimately found guilty.  The NDRB can only consider this case for the purpose of clemency.  The applicant did not provide sufficient documentation to warrant clemency.  Relief denied.

Pertinent Regulation/Law (at time of discharge)

A.  Naval Military Personnel Manual, (NAVPERS 15560), Change 1/83, effective 
28 Apr 83 until 14 Jun 87, Article 3640420, DISCHARGE OF ENLISTED PERSONNEL ADJUDGED BY SENTENCE OF COURT‑MARTIAL
B.  Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 2, AUTHORITY/POLICY FOR DEPARTMENTAL DISCHARGE REVIEW.  
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, D.C.  20374-5023