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

ex-SR, USN
Docket No. ND01-00269

Applicant’s Request

The application for discharge review, received 010105, requested that the characterization of service on the discharge be changed to honorable.  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 010808.  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.  It should be recalled that the U.S. Naval recruiter who recruited me was busted down in rank for misinforming me about my responsabilities in regards to swearing in to the Armed Forces.  Siniour Chief Z_ was the Sinior Chieff of military recruit officers in Chicago, ill at the time.  I gave him a micro cassett tape of the recruiter telling me on tape to swear in in Brooklyn N.Y. then go to the airport on the bus & get lost in the crowd so he could get his commision.  He told me I would not be in the Navy untill I swore in in Chicago, he lied & I got it on tape along with a half of dozen other ways he planed the Navy for money - Sinior Chief Z_ was familiar with this tape recording & this case-  Thank you-

P.S. I had told him I'd wanted a six month delayed entry - & had changed my mind.  That when the recruiter tricked me into this problem & I taped it to back myself up.

A.O.L. is on my rap sheet - could you please take it off-

Documentation

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

Seven pages from applicant's service record

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: USNR (DEP)	UNKNOWN		COG

Period of Service Under Review:

Date of Enlistment:  860924		Date of Discharge:  870421

Length of Service (years, months, days):

	Active:    00  06  28
	Inactive:  None

Age at Entry:  25			Years Contracted:  4

Education Level:  12			AFQT:  40

Highest Rate:  SR

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  NMF		Behavior:  	NMF		OTA:  NMF

Military Decorations:  None

Unit/Campaign/Service Awards:  None

Days of Unauthorized Absence:  55

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:

860925:	Applicant to unauthorized absence 0001, 25Sep86.

861025:	Applicant declared a deserter.

861118:	Applicant apprehended by Rybrook Police Department, Rybrook, NY 1615, 18Nov86.  Charges pending: resisting arrest and criminal mischief (resolved).

861118:	Applicant to confinement.

861119:	Applicant returned to military control 1040, 19Nov86 (55 days/apprehended).

861121:	Applicant from confinement.

870123:	Special Court Martial
	Charge I: violation of the UCMJ, Article 86:
	Specification: Unauthorized absence 0001, 25Sep86 to 1040, 19Nov86.
Charge II: violation of the UCMJ, Article 92:
Specification: Introduced liquor onboard RTC, Great Lakes, IL
Charge III: violation of the UCMJ, Article 121 (3 specs):
	Specification 1: Steal property of NEX valued at $45.00 on 25Nov86.
	Specification 2: Steal property of NEX valued at $45.00 on 1Dec86.
	Specification 3: Steal property of NEX valued at $3.69 on 5Dec86.
	Findings:  to Charge I, II and III and specifications thereunder, guilty.
	Sentence: CHL for 60 days, forfeiture of $438 per month for 2 months, Bad Conduct discharge.
	CA 870323: Sentence approved and ordered executed, except for bad conduct discharge.

870123:	Applicant to confinement.

870129:	Applicant released from confinement and restored to full duty.

870322:	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 870421 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 response to the applicant’s issue, the Board found that the punishment of any service member was then, and is now, a legitimate function of command judgement and prerogative.  Furthermore, the applicant has failed to substantiate how the alleged misconduct of another service member could excuse his own misconduct.

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. (B, Part IV)   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 he remains eligible for a personal appearance hearing provided that an application is received within 15 years from the date of discharge.
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 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 "afls10.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