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

FOR OFFICIAL USE ONLY

  ex-SR, USN
Docket No. ND05-00949

Applicant’s Request

The application for discharge review was received on 20050505.  The Applicant requested that his characterization of service received at the time of discharge be changed to honorable.  The Applicant requested a documentary record discharge review.  The Applicant did not designate a representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20060209.  After a thorough review of all available 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 characterization of the discharge shall not change.  The discharge shall remain as a bad conduct discharge by reason of court-martial conviction.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the attached document/letter: 

“Dear Sir or Madam,

My name is R_ K. W_ social security # xxx-xx-xxxx.  I was an active duty member of the U.S. Navy from 2000 Jan 11 until 2003 October 14.  I was stationed on the USS Camden for 1 year 11 months and 10 days.  In June 2002 I was court-martial zed, where I pleaded guilty for assault on SR M_ T. M_.  Since my discharge out of the Navy I have been trying to better myself as a young man.  I have been a security guard at Domino Sugar Refinery for the past two years, and also have been certified in Homeland Security.  I have also spent numerous hours with EM1 S_ S_ in helping him get new recruits to join the navy, Furthermore, I have done volunteer tutoring in mathematics for S_ T. R_ High School here in New Orleans.

The reason I have requested this review of my discharge is because of the mistake I made in January 2002 has hindered me in many facades of my life.  Recently I was hired with Lockheed Martin Corp at the NASA Center in New Orleans.  One week before my first day with Lockheed, I was given a call from the personnel manager.  She explained to me because of my discharge it would enable me from getting a security clearance, which as a requirement on NASA’s facility to work there.  In January 2002 I was a young kid that was involved in pulling a very stupid prank, that I wish would have never happened.

In closing I would like to thank this board for taking the time out to review my case.  Hopefully you can see that I have suffered enough, over a harmful prank that should’ve never occurred.  I believe that I deserve another chance to serve my country; instead of allowing this situation to overcast me for the rest of my life.  I honestly enjoyed my time in the Navy and the values that were instilled into me.  My experience molded me into being the man that I am today.  Hopefully one day I will have another chance to serve again and the board will consider giving me a better chance in getting better job opportunities.

Thank you,

R_ K. W_ [Applicant]” 

Documentation

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

Applicant’s DD Form 214
Special Court-Martial report of results, dated June 04, 2002
Character reference letter from G_ A_, MS1 (AW), USN, Brig Counselor, dated June 02, 2002
Brig detainee information card, dated March 09, 2002
Criminal record report dated March 29, 2005 (2 pgs)
Character reference letter from S_ P. S_
Employer reference letter from H_ T_, dated April 11, 2005
Letter of Appreciation from Mr. D. L. W_, dated April 13, 2005
Welcome letter from C_ B_, Human Resources, Lockheed Martin Space Systems Company, dated October 28, 2004
Welcome letter from R_ J. S_, President and CEO, Lockheed Martin
Birth Certificate of Applicant
Evaluation Report & Counseling Record for the period of 01 Jan 21 through 01 Jul 15

PART II - SUMMARY OF SERVICE

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

	Inactive:  USNR (DEP)	19990628 – 19991228		ELS
Inactive:  USNR (DEP)	20000110 				COG
	Active:    None

Period of Service Under Review:

Date of Enlistment:  20000111		Date of Discharge:  20031014

Length of Service (years, months, days):

	Active:    03 06 23  
	Inactive:  None

Time Lost During This Period (days):

	Unauthorized absence:  none
	Confinement:		  90 days

Age at Entry:  18 

Years Contracted:  4 

Education Level:  10 (GED) 		AFQT:  33

Highest Rate:  SN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.0 (3) 		Behavior:  2.3 (3) 		OTA:  2.50 (3)

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214):  Armed Forces Expeditionary Medal, Navy “E” Ribbon, Sea Service Deployment Ribbon.

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

BAD CONDUCT/COURT MARTIAL, authority: NAVMILPERSMAN, Article 5815-010 (formerly 3640420).

Chronological Listing of Significant Service Events: 

000110:	Enlistment waiver approved for DEP discharge and non-minor misdemeanors (theft of goods, simple battery and possession of marijuana).

000819:	Applicant unauthorized absent from 0900 until 1300 and missed ship movement on 000819.

000921:	NJP for violations of UCMJ, Article 86 (unauthorized absence) and Article 87 (missing ship’s movement through neglect).
	Award:  Restriction and extra duty for 30 days.  No indication of appeal in the record.

010120:	NJP for violations of UCMJ, Article 89 (disrespect toward a superior commissioned officer, 5 specs), Article 90 (failure to obey a lawful order, 2 specs), Article 91 (disrespect toward a chief petty officer, 2 specs), and Article 107 (false official statement).
	Award:  Forfeiture of $521 per month for 1 month (suspended for 6 months), restriction and extra duty for 30 days, reduction to E-2 (suspended for 6 months).  No indication of appeal in the record.

020329:	Applicant to Pre-trial confinement on 020329.

020604:	Special Court Martial 
	Charge I:  Violation of the UCMJ, Article 117 (provoking speech and gestures, 2 specifications).
	Specification 1:  Wrongful use of provoking words (“bitch” and “other fighting word”) toward Seaman Recruit M_ T. M_.  
	Specification 2:  Wrongful use of provoking gestures (slapping the bill of cover and shadow boxing) toward Seaman Recruit M_ T. M_. 
	Charge II:  Violation of the UMCJ, Article 128 (assault).  Pointing a dangerous weapon, a means likely to produce death or grievous bodily harm toward Seaman Recruit M_ T. M_.  
	Charge III:  Violation of the UMCJ, Article 134 (communicating a threat).  Wrongfully communicate a threat to injure Seaman Recruit M_ T. M_, by saying “I could fuck you up”.  
Plea and findings to charge I specification I and II and charge III:  Not guilty/withdrawn
Plea and findings to charge II:  Guilty excepting the language ”a dangerous weapon, a means likely to produce death or grievous bodily harm”; substituting the words “an unloaded firearm”.  
To the excepted language:  Not guilty
To the substituted language:  Guilty  
	Sentence:  Confinement for 90 days, reduction to E-1, Bad Conduct discharge.
	CA 020904:  The sentence approved and ordered executed, except for bad conduct discharge.
	
020609:	From confinement, restored to full duty (71 days). 

021002:	Applicant to appellate leave.

030516:	NMCCCA:  The finding of guilty and sentence, as approved on review, is affirmed. 

030805:	Applicant failed to petition for appellate review.

031009:	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 20031014 with a bad conduct discharge, the sentence adjudged by a properly convened special court-martial.  Both the convening and appellate review authorities subsequently approved the sentence (A and B).  After a thorough review of all available records, supporting documents, facts, and circumstances unique to this case, the Board found that the Applicant’s issues were insufficient to merit clemency (C).  

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.  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, and post service accomplishments, the Board determined these factors insufficient to mitigate the seriousness of the offenses for which the discharge was awarded.  Clemency is not warranted and the sentence awarded by the court-martial was appropriate for the offenses he committed.    Relief denied.

The Applicant stated that an upgrade to his discharge would help him obtain more favorable employment.  The Board has no authority to upgrade a discharge for the purpose of enhancing medical, housing, employment or educational opportunities.  Regulations limit the Board’s review to a determination on the propriety and equity of the discharge.  This issue does not merit relief.

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 civilian life subsequent to leaving the Naval service.  The NDRB is authorized to consider post-service factors in the recharacterization of a discharge to the extent such matters provide a basis for a more thorough understanding of the Applicant’s performance and conduct during the period of service under review.  Examples of documentation that should be provided to the Board include proof of educational pursuits, verifiable employment records, documentation of community service, and certification of non-involvement with civil authorities.  The Applicant provided four character reference letters, a police record check, and two letters from Lockheed Martin verifying his initial acceptance for employment.  These letters also verified the Applicant’s tutoring assistance at Sara T. Reed High School, assistance to the local Navy recruiter, police involvement with the New Orleans/Jefferson Parrish police, and his employment as a security guard for Domino Sugar.  After careful consideration, the Board concluded the Applicant’s post-service achievements do not merit clemency and have been insufficient to mitigate his misconduct by while in the Naval service.  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.  The Naval Military Personnel Manual, (NAVPERS 15560C), re-issued October 2002, effective 22 Aug 2002 until 8 Sep 2004, Article 5815-010 (formerly 3640420), Executing a Dishonorable or Bad Conduct Discharge.

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 128 (assault) and 134 (communicating a threat)

C.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part II, Para 205(2), Jurisdictional Limitations Authority for Review of Discharges

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