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

  ex-SR, USN
Docket No. ND05-00408

Applicant’s Request

The application for discharge review was received on 20050103.  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.
In the acknowledgement letter, the Applicant was informed that he was approaching the 15-year point for review by this Board and was encouraged to attend a personal appearance hearing at the Washington Navy Yard, Washington, DC.  Subsequent to the application, the Applicant obtained representation by the American Legion per telephone conversation on 20050314.
  
Decision
A personal appearance hearing discharge review was conducted in Washington, D.C. on 20051024.  After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, the Board determined that clemency was not warranted and that the characterization of discharge was appropriate.  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 in a letter to the Board for Corrections of Naval Records (BCNR):

“To:  The Board of Corrections Naval Records:

From:  R_ A. G_ (T_) [Applicant]
S.S. # -___ - __ -___

I am writing this letter to the Board of Correction Naval Records, in hope to have my Naval Discharge changed from a Bad Conduct Discharge to a General/under Honorable Conditions.  I would would like this change, so that I may reenter the Service of my country.  I would like the opportunity to finish what I started.

I am not going to make any excuses for what I did, because I know what I did was wrong.  In defense of myself; I should not have gone to a special court martial for wearing a t-shirt and shorts in the laundry room.

I was squaring away my gear because I had just received orders to ship out to the USS WISCONSIN.  I was in the laundry room at Penn Hall Norfolk Naval Base, Virginia when I was approached by a 1st class petty officer requesting to see my I.D.  I asked the petty officer why he wished to see my I.D.  The 1st class petty officer started to yell at me. So I refused to show my I.D and I questioned why the petty officer had singled me out, when there were six other sailors in the same attire I was wearing.

I pointed out to the petty officer this fact, but it did not make a difference to him.  I tried to explain to the petty officer that I had just received new orders to ship out to the USS WISCONSIN and I was getting my gear squared away.

The 1ST class petty officer called the base M.A.A.  The M.A.A. questioned me and asked if I wished to go to Captain’s Mass or go to a Special Court Martial.  I did not answer the M.A.A. so they made the decision for me.  They said I was going to go to a Special Court Martial.  I believe in my heart of hearts that a Special Court Martial was not warranted.  I believe I should have gone to Captain’s Mass.

I contribute my action to being young and stupid.  I thought I knew everything and you could not tell me what to do.  This is not an excuse, but I said to myself, if they want send me to a Special Court Martial I will give them a reason to send me to a Special Court Martial.  I went A.W.O.L.   I know I was wrong in my actions, but I really wanted to be on the USS WISCONSIN.  At the time I felt that the 1ST class petty officer stole that away from me.

I am now older and much wiser and see the error of my ways. I have a family of my own. I bought a house three years ago and my child was born just this year on Aug 12, 2004.  I need this discharge change for myself and my family.  I want my son to grow up proud of his father.  I need to be proud of myself again.  I wish to rejoin the service of my country, if I get the change of discharge I am seeking.

I wish to hold my head high again one day and say I served my country proudly.  My life was different in the early 90’s.  I have truly changed for the better.  At first it was hard for myself to adapt back into civilian life, but I did it.  I went back to school and received my associated degree in science.  I also became a licensed practical nurse for the state of Connecticut.  I am now a CPR instructor for the American Heart Association.  I have been at my current job for eight years and counting.  I supervise 3 nurses & 10 aides and watch over 60 patients on any given day.  I am also in school to become a Registered Nurse.

I know that these accomplishments may or may not help in the board decision to change my Naval records.  All I can hope and pray for is the best possible outcome so that I may reenlist into the service of my country and become the best soldier or sailor for myself and my country.

I would like to thank the Board for taking the time to review my records and the request to have my naval records changed.”    

Sincerely,

R_ A. G_ (T____) [Applicant]                                  

Additional issues submitted by Applicant’s representative, the American Legion, at the time of the hearing:

(Equity Issue)  Pursuant to 10 USC 874 (b) (UCMJ, Article 74) and in accordance with SECNAVINST 5420.174D, Part IV, Paragraph 403 m (7), this former member requests the Board’s clemency relief with up-grade of his characterization of service to General (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:

Applicant’s DD Form 214
Associate of Science Degree from Naugatuck Valley Community-Technical College, 	dtd 5 June 1999.
Diploma from Eli Whitney Regional Vocational-Technical School, dated April 12, 2002
Certificate of Adoption, dtd May 19, 1999
Nurse of the Year Award, dtd August 5, 2003
Employment Reference Letter dtd December 15, 2004 ( 2 pages)
Excelsior College Membership Card 2003-2004 Academic Year
Criminal Record & Motor Vehicle Conviction Report dtd December 22, 2004 
Response to Request for Separation Documents, dtd 25 August 1996
Letter from National Personnel Record Center, dtd August 13, 2004
DD Form 215, dtd December 16, 1991
Service Related Documents (17 pages)

Additional documentation submitted by the Applicant at the time of the hearing:

Letter of membership from Manchester Who’s Who, dtd September 22, 2005
	Certificate of Membership, Manchester Who’s Who, dtd September 23, 2005

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	890110 - 890627	COG
	Active:   None

Period of Service Under Review:

Date of Enlistment:  890628		Date of Discharge:  911216

Length of Service (years, months, days):

	Active:    01  08  27
	Inactive:  None

Age at Entry:  18			Years Contracted:  4 

Education Level:  12			AFQT:  42

Highest Rate:  SA

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  NMA*		Behavior:  NMA		OTA:  NMA

Military Decorations:  None

Unit/Campaign/Service Awards:  None

Days of Unauthorized Absence:  189

*No Marks made available for review.

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:

891203:	Applicant to UA at 0730, 891203.  Intentions unknown.

900105:	Report of Declaration of Deserter.  Applicant declared a deserter on 900103 having been an unauthorized absentee since 0730, 891203 from FLETRACEN NORVA.

900207:	Report of Return of Deserter.  Applicant surrendered to Union Ave Jail New Haven, CT 1300, 900205. Surrendered on board NETC Newport RI 1530, 900205.   Returned to military control 1530, 900205.

900305:	Special Court Martial
	Charge I:  violation of the UCMJ, Article 86.
	Specification 1:  Unauthorized absence from on or about 0730 891203 until on or about 1530, 900205, [63days/S].
	Findings:  to Charge I and specification 1 thereunder, guilty.
	Sentence:  Forfeiture of $400.00 pay per month for 2 months, restricted for 45 days and to perform hard labor without confinement for 45 days.
	CA 900321:  Sentence approved, and will be executed.

900511:	Applicant admitted to Naval Hospital Portsmouth, VA for taking a non-toxic medication ingestion.  Applicant admitted overdose of amoxicillin and Entex “because he sick of being in the Navy”.  

900515:	Psychiatric examination at Naval Hospital Portsmouth, VA.   
	Diagnosis:  Anti-social personality disorder.  Applicant did resolve admitting suicidal ideation.
Recommendation:  Applicant returned to full duty.  He is fully responsible for himself and his actions.    No follow-up required. 

900516:	Retention Warning:  Advised of deficiency (A potentially developing pattern of misconduct and/or substandard performance of assigned military duties based on a diagnosis of a personality disorder by the Psychiatric Ward, Portsmouth Naval Hospital, Portsmouth, Virginia.  This diagnosis evaluated you as not being self-destructive and not a danger to yourself or others.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 

900605:	Applicant UA at 1230, 9000605.  Intentions unknown.

900605:	Applicant from UA, surrendered at 1345, 900605.

900607:	Report of Medical Board, Naval Hospital Portsmouth, VA.  Applicant examined at Naval Hospital Portsmouth, VA for evaluation of EPTE seizure condition.  Applicant referred by the Psychiatry Department to Neurology Outpatient Clinic.  Applicant had a history of idiopathic epilepsy and was taking Dilantin.  Applicant had no convulsions since 15 years and discontinued Dilantin himself.  Applicant claims that recruiter told him not to mention his past history of epilepsy on his enlistment papers.  Though he did not have any more convulsions, he still had attacks which were spells of light-headedness where he had to sit down and would occasionally black out completely.  Past medical history was only remarkable recent admission to the Psychiatry ward for attempted suicide with Entex-LA and Amoxicillin because of depression. 
	Diagnosis:  Idiopathic epilepsy.  The Applicant should be on seizure precautions.  
	It is the opinion of the Board that the patient is not fit for full duty due to a physical disability which was neither incurred in nor aggravated by a period of active service, and should be discharged from the naval service.    

900701:	Applicant declared a deserter.  SA T_ [Applicant] scheduled for a special court-martial 900705.  On the evening of 900701 SA T_ was report to have taken all his personal items and civilian clothes out of his assigned room at Penn Hall leaving only several items of military clothing.  It has been documented that SA T_ stole a rental car rented to a student at Fleet Training Center, Norfolk, Virginia.  UA from Fleet Training Center at 2345, 900701.

900713:	Report of Declaration of Deserter (NAVPERS 1600-3).  Applicant declared a deserter on 900701 having been an unauthorized absentee since 2345, 900701 from FLETRACEN NORVA.

900805:	Applicant apprehended by civil authorities, New Haven, CT. Civil charges pending.

900926:	Civil conviction.  Applicant convicted by Milford Superior Court, Milford CT, for using a motor vehicle without permission and sentenced to 8 months in jail at the New Haven Correctional Center, CT.   

901105:	Applicant released from New Haven Correctional Center and returned to military control, Washington DC.

901105:	Pre-trial confinement from 901105-901121.

901106:	Report of Return of Deserter.  Applicant apprehended by civil authorities 2008, 901105 at Milford, CT.  Returned to military control 901105 (1000) at Deserter information point (NMPC-843), Washington, DC.

901121:	Special Court Martial 
	Charge I:  violation of the UCMJ, Article 86, (3 Specifications).
	Specification 1:  On or about 1230, 900605, fail to go at the time prescribed to his appointed place of duty.
Specification 2: On or about 1300, 900605, fail to go at the time prescribed to his appointed place of duty.
Specification 3: On or about 900701, without authority absent himself from his unit until 901105 (126days/A).  
Charge II: violation of the UCMJ, Article 91: (12 Specifications).
Specification 1:. Willfully disobey a First Class Petty Officer.
Specification 2: Willfully disobey a First Class Petty Officer.
Specification 3: Disrespectful toward a Superior Petty Officer. 
Specification 4: Disrespectful toward a Superior Chief Petty Officer. 
Specification 5: Disrespectful toward a Superior Chief Petty Officer. 
Specification 6: Willfully disobey a Superior Chief Petty Officer.
Specification 7: Disrespectful toward a Superior Chief Petty Officer. 
Specification 8: Willfully disobey a First Chief Petty Officer.
Specification 9: Disrespectful to a Superior Chief Petty Officer. 
Specification 10: Willfully disobey a Senior Chief Petty Officer.
Specification 11: Willfully disobey a Senior Chief Petty Officer.
Specification 12: Disrespectful to a Senior Chief Petty Officer.  
Charge III: violation of the UCMJ, Article 92: (2 Specifications).
Specification 1: Failure to obey an order or regulation.
Specification 2: Failure to obey an order or regulation. 
	Findings:  to Charge I and specifications 1 and 3 thereunder, guilty, to specification 2 thereunder, not guilty. 
 To Charge II and specifications 1, 5, 6, 8, 9, and 11 thereunder, guilty, to specifications 2, 3, 4, 7, 10 and 12 not guilty. 
 To Charge III and the specification thereunder, not guilty.     
	Sentence:  Confinement for 90 days, forfeiture of $400.00 pay per month for 3 months, reduction to E-1, Bad Conduct discharge.
	CA 910118:  Sentence approved and, except for the part of the sentence extending to the bad conduct discharge, will be executed.

901121:	Joined the Naval Brig, Naval Station, Norfolk, Virginia, for confinement.

910117:	From confinement; to appellate leave.  Waived right to clemency review. 

910626:	NMCCMR:  The findings of guilty and sentence, as approved on review, are affirmed.

910924:	COMA:  Request for appeal denied.  

911110:	Applicant subject of psychosocial examination at Lawrence Memorial Hospital, New London, Conn.  
	Reason for Admission:  Attempted suicide by shooting himself in the thigh.
	Precipitating Factors: Suicidal Ideations.

911116:	Applicant examined at Bethesda Naval Hospital as a result of referral by Lawrence Memorial Hospital, 
	Primary Diagnosis:  Psychosis NOS.
	Secondary Diagnosis:  Continued treatment for gunshot wound to right thigh.  
	Laceration on right hand.  Applicant put his hand through a window in reaction to news of death of family member.

911126:	Applicant examined by USN Medical Officer.  
	Diagnosis:  Anitsocial Personality Disorder.  Episodic alcohol and THC abuse in remission.  

911216:	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 19911216 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).  

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 and that the sentence awarded the Applicant at his court-martial was appropriate for the offenses he committed.  Relief denied.

The Applicant’s representative submitted an equity issue pursuant to 10 USC 874 (b) (UCMJ, Article 74) and in accordance with SECNAVINST 5420.174D, Part IV, Paragraph 403 m (7), in that this former member requests the Board’s clemency relief with up-grade of his characterization of service to General (Under Honorable Conditions) on the basis of his post-service conduct.  The NDRB is authorized to consider post-service factors in the recharacterization of a discharge.  However, there is no law or regulation, which provides that an unfavorable discharge, may be upgraded based solely on the passage of time, or good conduct in the civilian life subsequent to leaving the service.  Normally, to permit relief, a procedural impropriety or inequity must have been found to have existed during the period of enlistment in question.  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, is considered.  The Applicant provided proof of his employment, continuing education, and membership in the Manchester Who’s Who association.  While the Boards commends the Applicant for his steady employment and academic accomplishments, the Applicant’s admission to criminal involvement, specifically his arrest for conspiracy to commit murder and eventual conviction for the charge of assault, caused concern.  The Applicant did provide a criminal records check under his current name but did not provide corroboration for his arrest for assault, which occurred prior to his name change.  Also, the Applicant did not corroborate his community service.  After a complete review of the entire record, including the evidence submitted by the Applicant, the Board determined that his discharge was appropriate and that his evidence of post-service conduct was found not to mitigate the conduct for which he was discharged.  Relief denied.

The following is provided for the edification of the Applicant.  The Applicant has exhausted his opportunities for review by the NDRB.    The Applicant may, however, petition the Board for Correction of Naval Records (BCNR), 2 Navy Annex, Washington, DC 20370-5100, concerning a change in the characterization of naval service, if he desires further review of his case.

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), Article 91 (willfully disobeying noncommissioned or petty officer and disrespect toward a superior noncommissioned or petty officer).

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