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

 ex-SR, USN
Docket No. ND04-00497

Applicant’s Request

The application for discharge review was received on 20040204.  The Applicant requests the characterization of service received at the time of discharge be changed to honorable.  The Applicant requests a documentary record review.  The Applicant listed Civilian Counsel as the representative on the DD Form 293.

Decision

A documentary review was conducted in Washington, D.C. on 20040922.  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 3 to 2 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:

1.  “Applicant warrants an upgrade of his discharge because it is an inequity for him to continue to suffer the adverse consequences of a bad-conduct discharge.  Mr G_ commenced his first absence less than three weeks after a Navy doctor recommended him for administrative separation due to his mental health profile and issues in dealing with his unusual family stressors.  His difficulties in completing assigned tasks were not surprising given his assignment as a yeoman despite his not having completed 11th grade.  While UA, he held a full time job while helping his mother care for his father during his heartbreaking terminal illness.

Mr G_ is a productive and law-abiding member of society, responsible and devoted family man, and active in community volunteer work-indeed, he is the type of individual whom virtually anyone would desire as an employee or next-door-neighbor.  He is a highly-regarded supervisor whose character, hard work, and professionalism are noted repeatedly in the enclosed character letters from those he work for, and from those he works with.  He apparently goes “above and beyond” at work by helping fellow employees and boost morale in the work place, as evidenced by one employee who valued the comfort that Mr G_ provided when his parents died.  It is especially significant that Mr G_ helps other veterans make the transition into gainful civilian employment through Impact’s Veterans Program, for which he personally provides training.

Mr G_ is sincerely remorseful for the absences which netted him a bad-conduct discharge.  Notwithstanding his court-martial, he remains proud of the positive aspects of his Naval service, as evidenced by his membership in the Navy League and as an officer in the Sea Cadet Program.”

Documentation

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

Brief in Support of Application (7 pages)
Copy of DD Form 214
Affidavit (4 pages)
Enlistment Contract (6 pages)
Sick Call SF-600
Mental Health Clinic SF-513 (2 pages)
Letter from Head Mental Health Clinic, NHLB to CO, NMCB FOUR dated February 26, 1990
NAVPERS 1070/613 (Page 13 warning) dated February 27, 1990
Letter from M_ G_ (Mother) dated August 4, 2003 (2 pages)
Character Reference Letter from Det J_ J. C_, City of Philadelphia Police Department dated March 10, 2003
Reference Letter from P_ S_ dated March 24, 2003
Security Training Program Certificate dated March 22, 1996
Effective Security System Certificate of Completion of Supervisory Training dated July 20, 1996
Employment/Character Reference Letter from W_ J. U_, Manager, Impact dated February 27, 2003  
Employment/Character Reference Letter from R_ F_, Director of Veterans Services, Impact dated March, 5 2003
Employment/Character Reference Letter from R_ J_, Program  Director, Impact dated March 21, 2003           
Employment/Character Reference Letter from R_ H_, Impact dated March 12, 2003
Letter of Recommendation from H_ L.  A_, dated March 3, 2003
Letter from J_ M_ dated March 1, 2002
Letter from Reverend B_ R_, St John the Evangelist Church dated March 13, 2003
Employment/Character Reference Letter from SGT W_ T. B_, City of Philadelphia Police Department, Homicide Division dated May 15, 2003
Letter of Recognition from Superintendent of Schools, William Penn School District dated April 27, 2000
William Penn School District Volunteers Listing
American Red Cross Blood Donor’s Certificates of Appreciations (3)  
City of Philadelphia Certificate of Recognition for Vietnam Veterans Memorial Fund
Navy League of the United States Membership Certificate
GED Scores and Certificate dated May 15, 2001
Copy of Commonwealth of Pennsylvania Department of Education Diploma  
Letter from Township of Middletown, PA Police Department dated September 4, 2003
Record Check, Pennsylvania Dept of Transportation, Bureau of Driver’s Licensing (4 pages) dated August 27, 2003
Record Check, Pennsylvania State Police Central Repository
Letter from Attorney M_ T. H_ dated March 2, 2004
Employment/Character Reference Letter from J_ F. B_, dated April 14, 2003
Character Reference Letter from H_ J. G_, Jr. dated March 31, 2003

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	890624 - 890705	COG
	Active:   USN 			None

Period of Service Under Review:

Date of Enlistment:  890706		Date of Discharge:  950501

Length of Service (years, months, days):

	Active:    04  05  09 (excludes lost time)
	Inactive:  None

Age at Entry:  18			Years Contracted:  4 

Education Level:  10			AFQT:  51

Highest Rate:  SR

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  NMA*	Behavior:  NMA		OTA:  NMA

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM, M-16 Marksman Ribbon

Days of Unauthorized Absence:  460

*No Marks made available for review 

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:

900226:	Psychiatric Evaluation determined that service member suffers from a severe, longstanding (301.90) Personality Disorder, not other wise specified, this disorder existed prior to enlistment and is of such severity as to render this person incapable of serving adequately in the United States Navy. 

900227:	Retention Warning:  Advised of deficiency (Medically diagnosed personality disorder which negatively affects the performance of your duties.  Specifically, your performance is marked by a lack of attentiveness and dedication which causes your work to be inaccurate and untimely.  You require an inordinate amount of attention and supervision to ensure that you are at your assigned place of duty and that you work is satisfactorily performed), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 

900321:	Report of Declaration of Deserter (NAVPERS 1600-3).  Applicant declared a deserter on 900320 having been an unauthorized absentee since 1115, 900316 from NMCB FOUR.

910408:	Report of Return of Deserter.  Applicant surrendered to Philadelphia County Police on 910117 (1635).  Transferred to Naval Base Brig, PA.  Retained onboard TPU Philadelphia PA awaiting transfer authorization and transfer back to parent command.  Member recommenced UA with intent to desert from USN 0745, 910408.

910418:	Report of Declaration of Deserter (NAVPERS 1600-3).  Applicant declared a deserter on 910408 having been an unauthorized absentee since 0745, 910408 from TPU Philadelphia, PA.

910919:	Report of Return of Deserter.  Applicant surrendered to military authorities on 910117 (1635) at Naval Station Philadelphia.  In brig until March 1991, upon release again went UA while awaiting return to NMCB FOUR.  Declared a deserter 0745, 910408 by PSD Philadelphia.  Surrendered to military authorities at 1300, 910912 at PSD Naval Station.  Returned to military control 910912 (1300).  Member transferred to Commander, Thirty-First Naval Construction Regiment pending disciplinary action.

911118:	Special Court Martial [trial date 911118]
	Charge I:  violation of the UCMJ, Article 85, (2 Specifications).
	Specification 1:  Unauthorized absence with intent to remain away therefrom permanently 900320 – 910117, [303 days/Surrendered]
	Specification 2:  Unauthorized absence with intent to remain away therefrom permanently 910408 – 910912, [157 days/Surrendered]
	Findings:  Charge I and Specifications 1 and 2 thereunder, guilty, excepting the language “and with intent to remain away therefrom permanently” and the words “in desertion”.  Of the excepted words, not guilty, of the charge and specifications thereunder as excepted, guilty.
	Sentence:  Confinement for 100 days, forfeiture of $500.00 pay per month for 3 months, Bad Conduct discharge.
	CA 920209:  Sentence approved and, except that part of the sentence extending to a bad conduct discharge, will be executed.  Sixty four (64) days credit for pretrial confinement will be applied to the sentence.
	
911119:	Joined Navy Brig, Naval Station, Long Beach, California for confinement.

911209:	From confinement; to appellate leave.

941223:	NMCCA:  The findings of guilty and sentence, as approved on review, are affirmed

950501:	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 19950501 with a bad conduct discharge which was the sentence adjudged by a properly convened special court-martial.  That 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).  

Issue 1:  In response to the Applicant’s issue, 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.  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 contends his disciplinary problems were the result of stress caused by his family situation.  The NDRB recognizes that serving in the U.S. Navy is challenging.  Our country is fortunate to have men and women willing to ensure the hardships and sacrifices required in order to serve their country.  It must be noted that most members of the Navy serve honorably and therefore earn their honorable discharges.  In fairness to those members of the Navy, commanders and separation authorities are tasked to ensure that undeserving Sailors receive no higher characterization than is due.  The NDRB found that the Applicant's service was equitably characterized.  Relief denied.

Outstanding post-service conduct, to the extent that such matters provide a basis for a more thorough understanding of the applicant’s performance and conduct during the period of service under review, can be considered.  In determining whether a case merits a change based on post-service conduct, the NDRB considers the length of time since discharge, the applicant's record of community service, employment, conduct, educational achievements, and family relationships.  In reviewing the applicant’s post service, the Board was very impressed with the efforts he has begun to make in attempting to recoup his reputation, which has been sullied by his misconduct in the Navy.  However, the Applicant’s post-service accomplishments are not enough to warrant an upgrade at this time.  Therefore, relief denied.

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 documentation to support any claims of post-service accomplishments or any other evidence related to his discharge at that time.  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), Change 5, effective 
05 Mar 93 until 02 Oct 96, 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 for more than 30 days).

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.  

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 Rm309
		Washington Navy Yard DC  20374-5023