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

 ex-SR, USN
Docket No. ND04-00695

Applicant’s Request

The application for discharge review was received on 20040325.  The Applicant requests the characterization of service received at the time of discharge be changed to uncharacterized.  The Applicant requests a documentary record review.  The Applicant did not list any representative on the DD Form 293.  Subsequent to the application, he obtained representation by the American Legion.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20050228.  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/Convicted by special court martial, authority: NAVMILPERSMAN, Article 3640420.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

1.  “My discharge was inequitable because of one isolated incident in over 6 mo active duty, with no other adverse action.  I read in Item 1g that you cannot review discharges from general court martials.  I would really hope that you will look at this case because I believe you will see discrepancies in stories, as well as a story that just does not involve me in any crime.  I am innocent, and have never been able to have a moments peace knowing that I was falsely imprisoned.  This case was due to an assault on Sr M_, and SR M_.  I did not assault either but, did witness Sr P_ and SR L_ assault both also SR M_ is innocent.  In n.i.s. report the story has me at the scene which is true, but no mention of assault on my behalf, but in later report, the whole story is changed to incriminate due to cooerstion.  I never had the opportunity to speak in my behalf and received six months.  At the time of this incident SR P_, SR L_, and SR M_ were all drinking earlier that night.  I SR C_ was the only individual who was sober, due to me just coming on base, from my hotel room off base, where I had left to come to base Rtc/Ntc to change my clothes.  SR P_, and SR L_ acted alone in this cowardly act that appals, and embarrasses me to be implicated with.  I myself am an assault victim who received a broken jaw in 3 places, 3 stitches in eyebrow, from an attack of 2 people.  I know that you have no reason to believe that I am innocent, but I felt that I should atleast have some sort of say, of such an unfortunate incident.  I saw Sr P_, L_, & M_ while I was about to leave Rtc/Ntc, base after I had changed clothes.  I noticed that they had been drinking.  SR M_ was in a good mood, but SR P_ & L_ were acting irritated, and restless.  I began talking to SR M_ as we walked, SR P_ & L_ followed, occasionally interrupting our conversation.  I was informing SR M_ that I was going back to my room offbase to play cards with a girl & her girlfriend, and he could come if he wanted.  SR P_ seemed agitated since he was not invited, SR L_ was not saying much.  SR M_ & myself went to the club on base to check it out.  SR P_ & L_ followed.  While in the club R/R, SR P_ entered, and L_ followed, and P_ started to argue with a white male, whom he moments later slapped.  I left the R/R, and informed SR M_ in the hallway what P_ done.  We decided to leave the club, and get away from P_ & L_.  While walking toward exit of the base Rtc/Ntc, here came P_ & L_ running towards us.  P_ said why ya’ll leave us, while acting all agitated.  I noticed a white male approaching toward all of us, then all of a sudden while he was passing, SR P_ sucker punched him, and he fell down.  He said take my wallet man, and handed it to P_ as he pleaded not to get hit anymore.  P_ then took the money and dropped the wallet.  I began to trot off away from SR P_, as he and l_ were still near the victim.  I had motioned to M_ as to leave them.  Again, SR.  P_ & L_ ran to catch us, still insisting on coming to my room.  I began to have verbal exchange with P_, telling him I don’t want him coming with me, because he doesn’t have much sense, and what the world he did that, to that guy for.  Another white male was approaching, he must have seen a look of danger on P_ or L_‘s face because P_ went for a punch, and missed, and this time, L_ swung & also missed, and the guy ran off.  I was very alarmed, mad, and scared at what was happening, so very fast, I began to run toward the post exit to Shore Patrol & all followed Shore Patrol stopped us all, and would not allow me to explain what just happened, they just assumed we all assaulted both men, because the guy who ran, told security & they called the gate.  I was never treated fairly after that moment.  Im sorry for what happened to those guys, but I did not assault either.  I know they probably felt resentment toward black men, and could care less what happened to us all, just to insure whoever hit them was locked up.  I share a lot in common with those guys, because I resented them after the Court Martial too, and I was also once a victim, and no arrests were made or anything.  I forgive them, and wish one day they would tell the truth.  I had just graduated MSA school that week, and was due to ship out that Monday, that’s why I was celebrating off base.  If you could change my discharge, and send my certificate from MSA School I would really be indebted.
I never had an unthreaghtend chance to tell authorities what happened or who did it.  I would have done so.  Im sorry maybe I should have said something at the club.  I was young 21 years old, and very confused, nervous, and appauled.”

Additional issues submitted by Applicant’s counsel/representative (AMERICAN
LEGION):

2. “Equity Issue: Pursuant to 10 USC 874 (b) (UCMJ, Article 74) and in accordance with SECNAVINST 5420.1 74D, Part IV, Paragraph 403 m (7), we request on this former member’s behalf the Board’s clemency relief with up-grade of his characterization of service on the basis of his post-service conduct.

In accordance with Title 32, CFR, Section 724.166 and SECNAVINST 5420.174D, Part I, Paragraph 1.20, The American Legion submits to the Naval Discharge Review Board (NDRB or Board) the above issue and following statement in supplement to the Applicant’s petition.

The Board’s attention is invited to Block 3 of DD Form 293 wherein this Applicant is requesting an ELS.  This is inappropriate given the amount of time he served.  On his behalf, we ask that the Board consider upgrade to a GD.

Review of the available records reflect that this former member was convicted by SPCM on 900302 for VUCMJ, Article 122 (2).  Following approval by the convening authority on 900419 and affirmation by the NMCCMR on 900728, he was separated on 910624 with a Bad Conduct discharge due to conviction by court martial as authorized by NAVMILPERSMAN, Article 3640420.

Essentially, as noted on DD Form 293, this Applicant is requesting that his discharge be upgraded because the findings of his court martial was based on misinformation and therefore unjust.  He has not submitted any additional documentation for consideration.

The American Legion’s express purpose in providing this statement and any other submittals or evidence filed is to assist this Applicant in the clarification and resolution of the impropriety or inequity raised.  To that end, we rest assured that the NDRB’s final decision will reflect sound equitable principles consistent in law, regulation, policy and discretion as promulgated by Title 10, USC, Section 1553 and set forth in Title 32, CFR, Part 724 and SECNAVINST 5420.174D.

This case is now respectfully submitted for deliberation and disposition.”

Documentation

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

None

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	890525 - 890625	COG
	Active:   None

Period of Service Under Review:

Date of Enlistment:  890626		Date of Discharge:  910624

Length of Service (years, months, days):

	Active:    01  11  29  (Does not exclude lost time)
	Inactive:  None

Age at Entry:  20			Years Contracted:  4

Education Level:  12			AFQT:  45

Highest Rate:  SR

Final Enlisted Performance Evaluation Averages (number of marks):  None

Military Decorations:  None

Unit/Campaign/Service Awards:  None

Days of Unauthorized Absence:  2

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:

891107:	Retention Warning: Advised of deficiency (UA one day, charged as leave), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

900102:	To UA at 0730.

900104:	From UA at 0530.

900302:	Special Court-Martial.
Charge 1: Violation of the UCMJ, Article 122, robbery.
Specification: Did on 891116, by means of force or violence and putting him in fear, steal from the person of Sonar Technician (Submarine) SA A_ J. M_, U.S. Navy, against his will, a wallet, of an unknown value, and $171.00, U.S. currency, the property of Sonar Technician (Submarine) SA A_ J. M_, U.S. Navy.
Charge II: Violation of the UCMJ, Article 128, assault.
Additional Charge: Violation of the UCMJ, Article 122, robbery.
Specification: Did, on 891116, by means of force or violence and putting him in fear, steal from the person of SA A_ J. T_, U.S. Navy, against his will, a jacket of an unknown value, the property of SA A_ J. T_, U.S. Navy.
Findings: To Charge I and specification thereunder, guilty. To Charge II and specification thereunder, dismissed by the Military Judge as being multiplicious for findings purposes.  To Additional Charge and the specification thereunder, guilty, excepting the words, “an unknown,” substituting therefore, “of a value of about $35.00.”  Of the excepted words: Not Guilty.  Of the substituted words: Guilty.
Sentence:  Confinement for 180 days, forfeiture of $400.00 pay per month for 6 months, bad conduct discharge.
CA 900419: Sentence approved and, except for that part of the sentence extending to a bad conduct discharge will be executed.

900302:	Joined Naval Consolidated Brig MIRAMAR, for confinement.

900724:	Released from confinement and restored to full duty status.  Processed for appellate leave.

900726:	NMCCMR: The findings of guilty and sentence, as approved on review, are affirmed.

900828:	NC&PB clemency not granted; restoration denied.

901031:	COMA: Request for appeal denied.

910624:	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 19910624 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).

Issues 1 and 2.  The Applicant was found guilty at court-martial of robbery.  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.  The Applicant’s case was considered under the pertinent standards of equity to determine if any factors in this particular case merited clemency.  After a thorough review of the Applicant’s record, issues submitted, and post service accomplishments, the Board determined that clemency was not warranted and that the sentence awarded the Applicant at his court-martial was appropriate for the offenses he committed.  Relief denied.

The Board’s regulations limit its review to a determination on the propriety and equity of the discharge, and will not seek to obtain the requested training documents for the Applicant.

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.  The Naval Military Personnel Manual, (NAVPERS 15560A), Change 9, effective 14
Dec 89 until 14 Aug 91, 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 122, robbery.

C.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge
Review Board (NDRB) Procedures and Standards, Part II, 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 “http://Boards.law.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:

		Secretary of the Navy Council of Review Boards
		Attn:  Naval Discharge Review Board
		720 Kennon Street SE Rm 309
		Washington Navy Yard DC  20374-5023