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

 ex-GMSR, USN
Docket No. ND05-00027 

Applicant’s Request

The application for discharge review was received on 20040930.  The Applicant requests the characterization of service received at the time of discharge be changed to general/under honorable conditions or uncharacterized.  The Applicant requests a documentary record 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 20050214.  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 name is [deleted] and I enlisted 1 week after high school and went into the navy.  I was so happy and excited about my new career choice.  I was even in the delayed entry program for a year.  Once completing boot camp and going to GM A school in Great Lakes I was excited.  A school was not exactly easy and I had to work very hard at it.  And the Basic Electricity and Electronics school was equally as difficult.  I stayed out of trouble and kept focused.  I was sent for precomissioning duty to the USS Iowa BB 61 in 1984 and was very excited.  We commissioned this ship and this was the greatest thing in my life to be a part of that process.  I loved my duty aboard the battleship and excelled very quickly.  I received my 3rd and 2nd class rank aboard her in the 3 years that I was stationed on her.  Among other achievements I received my ESWS certification there also.  And I must let you know that achieving ESWS aboard a ship as big as a battleship is not an easy task.  There are so many different missile systems and radar systems and engine propulsion systems that one really had to apply himself to learn all of them.  My navy career was wonderfully on track.  Aboard this ship I visited 23 different countries and had Kings and Queens aboard from other countries, the president of the united states Ronald Regan.  We broke so many records aboard this command and it was all from the fine leadership I had in charge of me.  My chain of command.  Our ships morale was so very high it was very seldom you would talk to someone who had problems.  I enjoyed the navy so much I reenlisted for more years I went back for advanced schooling at GM C school that was the newest gun the navy had out at the time a 5” 54 Mk 45 mod 0 and
1.  C school was very hard for me but I finished with an 85 average in the class.  By this time I was aware I was going back to the fleet aboard a different ship.  I was stationed aboard the USS HAYLER, and was very excited to be there.  Aboard this ship my entire life changed in front of my eyes.  My first problems were not adjusting to the different ship but going out to sea and aboard this ship it was much smaller.  Going from a battleship class ship that never rocked even in the 40-foot swells in the north Atlantic, to a Spruance class destroyer that rocked in port tied up when the wind blew.  The ride out to sea was on my part life threatening, Every time I went underway aboard this destroyer I had to be confined to my rack from seasickness.  I complained over the years and asked for different commands because my health had deteriorated down to losing 40 pounds.  And it was so unbearable to be sick for months at time.  The corpsman gave me seasick patches but those did nothing for me.  I could not stand watches at all because of not being able to take the sickness.  I knew my life had changed for the worse, no one was listening to me and I was getting more and more sickly at each deployment.  And when my family learned of my bitterness at sea they contacted the captain of the ship and complained that I was loosing too much weight from seasickness and non-eating.  After my families complaint the captain just let me stay in my rack more on deployments but I still had to be present.  The very next thing that really took my morale down a lot lower was when this same captain was himself court-martialed for being drunk on the bridge underway and we had an at sea collision.  It happened at night off the coast of Holland, this is where we went to dry dock.  Where the collision hit was in the aft section of the ship on the starboard side where I was laying on the deck in the aft gun mount on watch.  I was laying down because of sickness that never went away underway.  I was traumatized and shocked and thought I was going to die when I heard the collision alarm and then in the next 8 seconds getting thrown against the equipment in the gun room.  We of course went to GQ stations and assessed the damages and I was so shaken from that night that I could not even sleep any more aboard this ship.  It was the bad dreams and /or the sickness to my stomach or both that kept me awake at night.  Aboard this ship it was such a horrible experience for me.  The crew’s morale was so low there were a lot of people going AWOL overseas.  I knew if I did not try and help myself I would be in an unsafe mental state and more depressed.  There was no psychiatrist aboard a destroyer I could talk to.  Once back in Norfolk after several months in dry dock overseas to repair the damages.  I had to help myself.  I was desperate and did not want to go away but I wanted my health back and to see the dr. my family had me to see when I went home on leave.  I left the navy because it had put my health and life at risk and was not considering my massive weight loss.  From the rocky ship at sea.  I did this to keep from committing suicide aboard the ship or something worse.  I strongly feel that at my discharge time I was given the wrong discharge due to the circumstances and truly wish the board would take this information into account and grant me an upgrade on my discharge.  To general or honorable.  Thank you for taking time to read about my tragedies and considering me for upgrade.”

Documentation

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

Applicant’s DD Form 214

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	820806 - 830531	COG
	Active:   USN 			830601 - 870401	HON

Period of Service Under Review:

Date of Enlistment:  870402		Date of Discharge:  920402

Length of Service (years, months, days):

	Active:    04  04  07  (Does not include lost time)
	Inactive:  None

Age at Entry:  22			Years Contracted:  6

Education Level:  13			AFQT:  90

Highest Rate:  GMG3

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.10 (2)		Behavior:  2.60 (2)		OTA:  3.30

Military Decorations:  None

Unit/Campaign/Service Awards:  SSDR (2), MUC (2), BER (2), LC

Days of Unauthorized Absence:  237

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:

880419:	NJP for violation of UCMJ, Article 92: Failure to obey lawful written order.
	Award:  Forfeiture of $510 per month for 2 months, restriction for 30 days, removal of frocking to GMG2.  No indication of appeal in the record.

910118:	Special Court-Martial.
	Charge I:  Violation of the UCMJ, Article 86.
	Specification:  Unauthorized absence, 890216 – 900805 (171 days/S).
	Additional Charge:  Violation of the UCMJ, Article 86.
	Specification:  Unauthorized absence, 900927 – 901201 (66 days/S).
	Findings:  To all charges and specifications, guilty.
	Sentence:  Confinement for 40 days, forfeiture of $500 per month for 2 months, reduction to E-1, bad conduct discharge.
	CA 910228:  Sentence approved and ordered executed, except for bad conduct discharge.

910507:	NC&PB clemency not granted; restoration denied.

910612:	NMCCMR:  The findings of guilty and sentence, as approved on review, are affirmed.

920402:	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 19920402 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.  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 and issues submitted 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 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 for more than 30 days.

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