Notwithstanding his court martial

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					                        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.




The remaining portion of this document is divided into 4 Parts: Part I - Applicant’s Issues and
Documentation, Part II - Summary of Service, Part III – Rationale for Decision and Pertinent
Regulation/Law, Part IV - Information for the Applicant.
Docket No. ND04-00497


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


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Docket No. ND04-00497

   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




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Docket No. ND04-00497


                            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.


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Docket No. ND04-00497



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.




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Docket No. ND04-00497

            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.




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Docket No. ND04-00497


  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


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Docket No. ND04-00497

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.




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Docket No. ND04-00497


                    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




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