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

 ex-SR, USNR
Docket No. ND02-01105

Applicant’s Request

The application for discharge review, received 020805, requested that the characterization of service on the discharge be changed to honorable.  The Applicant requested a personal appearance hearing discharge review before the Board in the Washington National Capital Region.  The Applicant listed American Legion as the 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 030722.  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, as submitted

1.  (Equity Issue) Pursuant to 10 USC 874 (b) (UCMJ, Article 74) and in accordance with SECNAVINST 5420.174C, enclosure (1), paragraph 2.24 and 9.3, this former member requests the Board's clemency relief with up-grade of his characterization of service to under honorable conditions on the basis of his post-service conduct. 

Documentation

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

Copy of DD Form 214
Character Reference Letter from M_ P_, dated March 8, 2002
Character Reference Letter from Applicant's Mother dated March 8, 2003 (2 pages)
Reference Letter from Applicant's Wife (5 pages) 
Letter from Applicant dated March 22, 2002 (7 pages)
Reference Letter from M_ T. C_, dated March 10, 2002
Reference Letter from Psychologist Dept of Veterans Affairs dated February 21, 2003
Character Reference Letter from D_ B_, Residential Counselor, dated March 11, 2002
Letter from H_ A. S_, Chief Apostle of Ministering Results in Jesus Name Church dated, March 12, 2002
Letter from I_ M_, Dept of Veterans Affairs
Letter from F_ C_, Jewish Employment & Vocational Services dated February, 28, 2002
Employment Reference Letter from P_ R_, Special Assistant to City of Philadelphia City Councilwoman J_ L. B_, dated March 6, 2002
Employment Reference Letter from D_ W_, Counselor RHD Ridge Center, dated March 7, 2002
Reference Letter from D_ M_, Property Manager, Bancroft Court Apartment, dated February 21, 2002
Letter from National Personnel Record Center
Copies from Service Record (64 pages) 

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	None
	Active:   USN 		None

Period of Service Under Review:

Date of Enlistment:  861125		Date of Discharge:  930222

Length of Service (years, months, days):

	Active:    05  07  28
	Inactive:  00 06  29

Age at Entry:  20			Years Contracted:  8

Education Level:  12			AFQT:  27

Highest Rate:  SA

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  2.00 (2)	Behavior:  2.60 (3)		OTA:  2.10

Military Decorations:  None

Unit/Campaign/Service Awards:  SSDR

Days of Unauthorized Absence:  57

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:

870624:	Ordered to active duty for 36 months under the Active Mariner program.

871106:	Retention Warning:  Advised of deficiency (Article 92: SNM violated a lawful written order by being at the E-CLUB while in a duty status, on or about 871011; Article 86: SNM was UA from 1600 until 1610 on or about 871031), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 

871106:	NJP for violation of UCMJ, Article 92: Failure to obey a lawful order/regulation on 871011, violation of UCMJ, Article 86: UA from appointed place of duty on 871031.
	Award:  Forfeiture of $153.00 pay per month for 1 month, restriction for 14 days (suspended for 6 months), extra duty for 14 days.  No indication of appeal in the record.

880413:	Retention Warning:  Advised of deficiency (Violation of UCMJ, Article 86: Unauthorized absence from 220, 880404 to 2213, 880404), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.  

880413:	NJP for violation of UCMJ, Article 86:  Unauthorized absence from 2200 to 2213, 880404.
	Award:  Restriction for 10 days.  No indication of appeal in the record.

880623:	NJP for violation of UCMJ, Article 86: UA from 2200, 880515 to 1455, 880606 (22 days/S), violation of UCMJ, Article 87: Through design missed ship's movement 880517.
	Award:  Forfeiture of $335.00 pay per month for 2 months, restriction and extra duty for 45 days, reduction to E-1 (suspended for 6 months).  No indication of appeal in the record.

890317:	NJP for violation of UCMJ, Article 86: Unauthorized absence from 0600, 881222 to 1100, 881227 (5 days), violation of UCMJ, Article 90: Willfully disobeyed a lawful order from an officer to report to sick call on 890203; and willfully disobeyed a lawful order from the Executive Officer to provide a urine sample on 890208.
	Award:  Forfeiture of $200.00 pay per month for 1 month (suspended for 90 days), restriction and extra duty for 30 days, reduction to E-1 (suspended for 90 days).  No indication of appeal in the record.

890709:	NJP for violation of UCMJ, Article 92: Willfully dereliction of duty by failing to remain awake during lookout on 890716.
	Award:  Confinement on Bread and Water for 3 days.  No indication of appeal in the record.

890717:	NJP for violation of UCMJ, Article 90: Did willfully disobey a lawful command.
	Award:  Forfeiture of $250.00 pay per month for 1 month (suspended for 6 months), reduction to E-1.  No indication of appeal in the record.

890809:	Suspended punishment of forfeiture of $250.00 pay per month for 1 month awarded at CO's NJP held on 890717 is hereby vacated due to continued misconduct.

900304:	NJP for violation of UCMJ, Article 86: UA from 0700, 900127 to 1700, 900127; UA from 900214 to 900220 (6 days/S) and UA from 900224 to 900226 (2 days/S).
	Award:  Forfeiture of $100.00 pay per month for 2 months, restriction and extra duty for 30 days.  No indication of appeal in the record.

900314:	NJP for violation of UCMJ, Article 86: (4 Specifications), failure to go to appointed place of duty, to wit: Restricted Mens Muster on 1530, 900307, 2130, 900307, 1230, 900308, and 0630, 900310.
	Award:  Confinement on Bread & Water for 3 days.  No indication of appeal in the record.

900405:	NJP for violation of UCMJ, Article 86: (3 Specifications), missing restricted men's muster on the hangar bay at 0630, 900319, 0630, 900320, and 1530, 900324; and without authority go from his place of duty at 1900, 900330.
	Award:  Forfeiture of $100.00 pay per month for 1 month, restriction and extra duty for 20 days.  No indication of appeal in the record.

900523:	Pre-trial restriction.

900608:	Applicant involuntarily retained for the purpose of the completion of disciplinary action (Applicant initialed, but failed to sign).

900710:	Released from pre-trial restriction.

900710:	NJP for violation of UCMJ, Article 86: UA from pre-trial restriction muster (21 specifications).
	Award:  Forfeiture of $362.00 per month for 2 months (suspended for 6 months), restriction and extra duty for 10 days.  No indication of appeal in the record.

900731:	Special Court-Martial. 
	Charge I:  violation of the UCMJ, Article 86, (16 Specifications).
	Specification 1:  Failure to go at the time prescribed to his appointed place of duty, to wit: Restricted Men's Muster at the hangar bay at 1230, 900406; Specification 2: Failure to go at the time prescribed to his appointed place of duty, to wit: Restricted Men's Muster at the hangar bay at 1230, 900407; Specification 3: Failure to go at the time prescribed to his appointed place of duty, to wit: Restricted Men's Muster at the hangar bay at 1530, 900411; Specification 4: Failure to go at the time prescribed to his appointed place of duty, to wit: Restricted Men's Muster at the hangar bay at 1230, 900412; Specification 5: Failure to go at the time prescribed to his appointed place of duty, to wit: Restricted Men's Muster at the hangar bay at 0630, 900416; Specification 6: UA from unit from 0630 to 0700, 900516; Specification 7: UA from unit from 0630 to 0700, 900517; Specification 8: UA from unit from 0630 to 1230, 900521; Specification 9: Failure to go at the time prescribed to his appointed place of duty, to wit: Restricted Men's Muster at the hangar bar at 1530, 900521; Specification 10: Failure to go at the time prescribed to his appointed place of duty, to wit: Restricted Men's Muster at the hangar bay at 0630, 900524; Specification 11: Failure to go at the time prescribed to his appointed place of duty, to wit: Restricted Men's Muster at the hangar bay at 1230, 900524; Specification 12: Failure to go at the time prescribed to his appointed place of duty, to wit: Restricted Men's Muster at the hangar bay at 1500, 900524; Specification 13: Failure to go at the time prescribed to his appointed place of duty, to wit: Restricted Men's Muster at the hangar bay at 1830, 900524; Specification 14: Failure to go at the time prescribed to his appointed place of duty, to wit: Restricted Men's Muster at the hangar bay at 0630, 900527; Specification 15: Failure to go at the time prescribed to his appointed place of duty, to wit: Restricted Men's Muster at the hangar bay at 1230, 900527; Specification 16: Failure to go at the time prescribed to his appointed place of duty, to wit: Restricted Men's Muster at the hangar bay at 0630, 900528.  Charge II: violation of UCMJ, Article 92: Violation a lawful general regulation by wrongfully possessing two U.S. Armed Forces Identification Cards.
	Findings:  to Charge I and specifications 1 through 5 thereunder, guilty; to Charge I specification 6, guilty excepting the numeral 0730, substituting therefore the number 0700 of the excepted numeral, Not Guilty, of the substituted numeral, Guilty of specification as amended, Guilty. To Charge I specification 7 thereunder, guilty. To Charge I and specifications 8, 9 and 10 thereunder, not guilty.  To Charge I specifications11 through 16 thereunder, guilty.  To Charge II and specification thereunder, guilty.
	Sentence:  Confinement for 60 days, forfeiture of $200.00 pay per month for 3 months, Bad Conduct discharge.
	CA 910209:  Sentence approved and ordered executed, except for bad conduct discharge

900731:	Joined the Navy Brig, Naval Station, Norfolk, Virginia, for confinement.

900918:	Released from confinement and restored to full duty.
 
901012:	Unauthorized absence from TPU NORVA 2330, 901012 until 0715, 901013 (7 hours, 45 minutes/Surrendered).

901013:	Unauthorized absence from TPU NORVA 1300, 901013 until 1405, 901013 (1 hour, 5 minutes/Surrendered).

901026:	NJP for violation of UCMJ, Article 92: Failure to obey order or regulation, having knowledge of a lawful order issued by GSEC K_, to  wit: PARA 4, C-WING Rules and regulations DTD 901004, an order which it was his duty to obey, did onboard TPU NORVA, on or about 2330, 901012, fail to obey the same; Specification 2: having knowledge of a lawful order issued by GSEC K_, to wit: PARA 4, C-WING Rules and Regulations DTD 901004, an order which it was his duty to obey, did onboard TPU NORVA, on or about 1405, 901013, fail to obey the same; Specification 3: Having knowledge of a lawful order issued by SM1 L_ to get out of his rack, and order which it was his duty to obey, did onboard TPU NORVA, on or about 0715, 901013, fail to obey the same.
	Award:  Forfeiture of $462.75 pay per month for 1 month, restriction to Nimitz Hall for 15 days, extra duty for 15 days.  No indication of appeal in the record.

910111:	NJP for violation of UCMJ, Article 86: Unauthorized absence from TPU NORVA 0715, 901121 to 1500, 901213 (22 days), violation of UCMJ, Article 92: Failure to obey an order or regulation issued by BT2 D_ to leave the Club at P-87, NAVSTA NORVA on or about 2015, 901116, violation of UCMJ, Article 95: Resistance, Breach of Arrest and Escape, did onboard TPU NORVA, on or about 2109, 901116 escape from custody of DC2 N_, a person authorized to apprehend the accused.
	Award:  Restriction to Nimitz Hall for 30 days (suspended for 30 days), extra duty for 45 days.  No indication of appeal in the record.
	
910503:	NC&PB clemency not granted; restoration denied.

910705:	NMCCMR:  The findings of guilty and sentence, as approved on review, are affirmed.

930222:	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 in absentia on 930222 with a bad conduct discharge which was the sentence adjudged by a properly constituted special court-martial that was determined to be legal and proper, affirmed by appellate review authority and executed (A and B).  The Board presumed regularity in the conduct of governmental affairs (C).  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 (D and E).

Issue 1.  With respect to a discharge adjudged by a court-martial case, the action of the NDRB is restricted to upgrades based on clemency (C, 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 and documentation provided by the Applicant devoid of any mitigating or extenuating factors sufficient to offset the seriousness of the offenses for which the discharge was awarded.  Relief denied.

The Applicant is reminded that he remains eligible for a personal appearance hearing, provided an application is received at the NDRB within 15 years from the date of his discharge.  Representation at a personal appearance hearing is recommended but not required.

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.  The Manual for courts-martial authorizes the award of a punitive discharge if adjudged as part of the sentence upon conviction by a special or general court martial for violation of the UCMJ, Article 86- unauthorized absence.

C.  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.  

D.  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.

E.  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