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

  ex-AR, USNR
Docket No. ND03-00442

Applicant’s Request

The application for discharge review was received on 20030123.  The Applicant requests the characterization of service received at the time of discharge be changed to general/under honorable conditions.  The Applicant requests 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 20031215.  After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, no impropriety or inequity in the characterization of the Applicant’s service was discovered by the NDRB.  The Board’s vote was unanimous that the character of the discharge shall not change.  The discharge shall remain: BAD CONDUCT/COURT MARTIAL CONVICTION, authority: NAVMILPERSMAN, Article 3640420.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

“I. ISSUE 1 - MILITARY CONDUCT

A. CONSIDERATION - My discharge was inequitable because it was based on one isolated incident in 24 months of service with no other adverse action or incident.

Issue 1, Military Service Record
In my two year period of active duty, there were no other adverse actions taken against me for behavior or conduct. There is no other Court-Martial, Captain’s Mass, Base Restrictions, or “write ups” other than those directly related to the Special Court-Martial that the Bad Conduct Discharge is issued for. I showed exemplary service from Boot Camp until the incident in question.

B. CONSIDERATION - My discharge was inequitable because it was based on one isolated incident in 24 months of service with no other adverse action or incident. Also, evaluations by senior squadron personnel reflect not only job knowledge, but character for which assigned positions are performed.

Issue 1, Enclosure 3,4,5, 6 - ENLISTED PERFORMANCE EVALUATION REPORT
My military evals are further proof of my military conduct up until the time of my Court-Martial. In my two year active duty period I scored no less than 3.2 out of a 4.0 consideration. This was also based on job performance and therefore responsibilities assigned. At the time of my Court-Martial, I was SH-3D Plane Captain qualified and responsible for the training of Plane Captain candidates, assigned as Ground Support Equipment Petty Officer, assigned Squadron Technical Publications Librarian, Landing Signalman qualified, Aircraft/Shipboard Firefighting qualified, assigned to the Base Auxiliary Security Force. I had completed Plane Captain training, Corrosion Control School, Auxiliary Security Force School, Landing Signalman School, Flight Deck operations school, Portable Hydraulic Supply School, Disbursed Technical Publications Librarian School, and Flight line/Flight deck Emergency Procedures training, and all in a period of a year and a half. Also, I was the Plane Captain on duty during an engine fire of aircraft 614 during flight line launching operations. I argue therefore that the incident that caused my Court-Martial was a mistake and not one that reflected conduct. None of these qualifications were considered during trial and I ask the Board to consider these now.

II. ISSUE 2- CHARACTER REFERENCES

C. CONSIDERATION - My discharge was inequitable because it was based on one isolated incident in 24 months of service with no other adverse action or incident. Also, there Were several Officers and Enlisted Personnel in key positions who felt my return to active duty would be more beneficial to the Navy. These “opinions” by those that I served with directly were not considered in trial, and only one witness for the Convening Authority was called to testify against me. The court was unaware of the character statements submitted on my behalf even though those statements were included in my record of trial.

Issue 2, Enclosure 7-11 — CHARACTER REFERENCES These are statements provided by Squadron co-workers ranging from LCDR A_ M_, Operations Officer, to Lt. J_ W_, Line Division Officer. All of the statements on my behalf first speak to the ability of me, and the consistency of me performing the responsibilities assigned to me. Every statement concludes with the individual stating his feelings about me not only returning to the Navy, but returning to the unit in particular. These were individuals that I served with directly, and individuals who depended on my work ethic. These were the pilots and maintenance chiefs and personnel whom I reported to. These were the individuals who were aware of my work ethic and who were directly affected by that ethic. More importantly, these were the individuals who because of the closed in nature of our military relationships could determine who could be trusted and who could not. Understand that this was a TAR (TRAINING and ADMINISTRATION of RESERVES) unit. This meant that the squadron was never fully manned but often operated on a skeleton crew. Many of the Officers and Enlisted assigned to this unit were reservists. However, these are statements from full time and reserve personnel, and they all speak to the conduct for which I behaved myself, “it would be in the best interest of the Navy for Airman Dupree to return to active duty.”

II. ISSUE 3- DELAY OF REVIEW BY NAMARA
D. CONSIDERATION - Appellate Activity indicates submitted appeal was lost thereby extending the usual six month appellate leave time to six years. This caused the inability on my part to be able to show that I was completely separated from the U.S. Navy,

Issue 3, Enclosure 12- LEAVE REQUEST/AUTHORIZATION When I requested and was authorized to go on Appellate leave, it was told to me that Appellate Leave lasted no more than six months, and that I would have to report to the nearest Naval Installation to have my Appellate Leave I.D. card renewed. I did this consistently for the six month period and expected to hear from the Appellate Review Board within six months with a decision on my case. The six months turned out to be six years because NAMARA had lost my file. This caused several problems because I was unable to show that I was separated from the military. I couldn’t apply for any Veterans Benefits because I couldn’t show a DD2 14, and several jobs (not all of them Aviation related) turned me down because they couldn’t allow me the time off to go to the nearest Navy base to renew my card. It turns out that those positions I had applied for would not consider me for employment because they considered my case to be a type of Deferred Adjudication, and the denial of employment to me was not based on previous criminal activity while on active duty. I departed on Appellate Leave 89 Aug 11, and was told I would have a decision from NAMARA sometime in Feb 90. I reported regularly to NAS Dallas to renew my Appellate Leave card, all the while my attorney had heard nothing from NAMARA.

Issue 3, Enclosure 13— SPECIAL COURT-MARTIAL SUPPLEMENTAL ORDER
Enclosure 12 directly confirms Enclosure 13 in that Enclosure 12 indicates the date departed on Appellate Leave and Enclosure 13 the date NAMARA executed the trial court order and Appellate leave was completed. The difference is six years from Aug 89 to Aug 95, and is submitted to show just cause for Issue 3, Enclosure 12.

III. ISSUE 4 - DENIAL OF VETERANS BENEFITS
E. CONSIDERATION - Discharge hinders ability to receive Veterans Benefits essential to self preservation and generate income based on training and experiences.

Issue 4, Enclosure 14 - DENIAL OF VETERANS BENEFITS
It is well understood that the type of discharge received directly affects the ability to receive benefits. However, it should be taken into consideration that the amount of time that has gone by since my offense, conviction, imprisonment, release, and discharge. At the time of my offense I was 20 years old. Then I thought I would make a career of the Navy and I had no other career goals in mind. I worked very hard to accomplish the tasks assigned to me, and took every obligation seriously as my military evaluations show. At the time of the submission of this application I am 34 years old. I have learned a lesson that cannot be made any clearer than it is. With the hope that the “feeling” for what I had done, or the standard by which a less than perfect character discharge could allow for benefits or just forgiveness had been somehow amended to help me rather than intentionally hinder me, I have applied for countless VA home loans. I have also applied more than three times for financial education assistance using the funds I placed into my GI Bill. On every occasion because of my discharge I have been refused. I have gone as far as two semesters out of my own pocket at two different Universities, but have been unable to finish due to financial inability. This also has caused me the inability to secure income in line with my previous training and experience. I need to be understood that upon enlistment in the Navy my AFQT scores were high enough so that I could pick any job in the military that I wanted, but I chose the aviation community because it was what I loved to do more than anything else. It has been this same community that even as a civilian with a Bad Conduct Discharge that I have continued to try and find employment in. I have not been able to finance schooling to be licensed in this area because I don’t have the funding needed to apply to these schools.

IV. ISSUE 5 - CONDUCT SINCE SPECIAL COURT-MARTIAL
F. CONSIDERATION - My discharge was inequitable because it was based on one isolated incident in 24 months of service with no other adverse action or incident.
Also, my discharge cannot speak to my present conduct and frame of mind.

Issue 5, Enclosure 15 - CERTIFICATE OF LICENSE
I have enclosed my Certificate of License to show my current conduct as a U.S. Citizen. The statement my license makes is in direct opposition to the statement my DD214 makes. The trial records and the DD214 can only speak to a situation that took place 14 years ago and under extreme stress. The Certificate of License speaks to an entirely different individual than that of the DD214. Not only do I admit to my criminal action while on active duty, I admit that the punishment I received was fitting for the crime. Yet should my DD214 continue to reflect a military criminal when I am a person who seeks to just? This request is not only about how I look, it’s about how I look at myself. It would appear that I broke military law because I was in the position to break the law. This license does not take me out of position to break the law, because there are laws that I could choose to break. Rather, it says that I have no desire to break the law. Having knowledge of the aircraft I damaged gave me knowledge of how to break it, this license does not take away my knowledge of how to break the law, it controls my knowledge of how to break the law. For all of the Character Statements submitted to you to show trust-worthy character, this license I believe is the most powerful of those statements.
I need the opportunity to move on from my mistake 14 years ago. I have plans for my future and my family. I made the mistake of destroying the plans I had for my military career, now I ask this board to give me the chance to fulfill the plans for my civilian career.”

Documentation

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

Copy of DD Form 214
Personal Statement from Applicant dated January 13, 2003
Copies of Enlisted Performance Evaluation Reports (4)
Character Reference Letters (5)
Copy of Leave Request/Authorization
Copy of Special Court Martial Supplemental Order
Letter of Response from Department of Veterans Affairs
Baptist Ministry Certificate of License

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:  860611		Date of Discharge:  950823

Length of Service (years, months, days):

	Active:    08  00  26 (Does not exclude confinement time and appellate leave.)
	Inactive:  00  11 30

Age at Entry:  18			Years Contracted:  8

Education Level:  12			AFQT:  57

Highest Rate:  AN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.70 (2)	Behavior:  3.80 (2)		OTA:  3.80

Military Decorations:  None

Unit/Campaign/Service Awards:  None

Days of Unauthorized Absence:  None

Character, Narrative Reason, and Authority of Discharge (at time of issuance):

BAD CONDUCT/COURT MARTIAL CONVICTION, authority: NAVMILPERSMAN, Article 3640420.

Chronological Listing of Significant Service Events:

870610:	Ordered to active duty under the TAR program.
 
890623:	Special Court Martial [trial dates 890621 – 890623]
	Charge I:  violation of the UCMJ, Article 108: Willfully damaging military property of the United States.
	Findings:  to Charge I and specification thereunder, guilty.
	Sentence:  Confinement for 90 days, forfeiture of $300.00 pay per month for 3 months, reduction to E-1, Bad Conduct discharge.
	CA 900614:  Sentence approved and ordered executed.

890623:	Joined NAVSTA Treasure Island, for confinement.

890712:	Waived right to clemency review 

890811:	From confinement; to appellate leave.

930730:	NMCCMR:  The findings of guilty and sentence, as approved on review, are affirmed.  

940824:	COMA:  Request for appeal denied.  

950823:	SSPCMO:  Article 71c, UCMJ, having been complied with, Bad Conduct discharge ordered executed.		

950823:	Discharged in absentia.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged in absentia 19950823 with a bad conduct discharge which was the sentence adjudged by a properly convened special court-martial.  This sentence was subsequently approved by both the convening and appellate review authorities (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).

Issues 1-5:  In response to the Applicant’s issues, 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, the action of the NDRB is restricted to upgrades based on clemency.  Clemency is an act of leniency that reduces the severity of the punishment imposed.  After a thorough review of the Applicant’s record, issues submitted, and post service accomplishments, the Board determined that clemency was not warranted.  

The Applicant remains eligible for a personal appearance hearing, provided an application is received, at the NDRB, within 15 years from the date of discharge.  The Applicant can provide additional documentation to support any claims of post-service accomplishments at that time.  Representation at a personal appearance hearing is recommended but not required.