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

 ex SR, USN
Docket No. ND97-01338

Applicant’s Request

The application for discharge review, received 970910, requested that the characterization of service on the discharge be changed to honorable.  The applicant requested a documentary discharge review and listed the AMERICAN LEGION as his representative on the DD-293.

Summary of Review

A documentary discharge review was conducted in Washington, D.C. on 980914.  The NDRB determined that the discharge equitably reflects the quality of service rendered.  The discharge shall remain:  BAD CONDUCT/Convicted by special court martial; authority:  NAVMILPERSMAN, Article 3640420.

PART I - APPLICANT’S ISSUES (verbatim)

1. (EQUITY ISSUE) Pursuant to 10 USC 874 (b) (1994) (UMCJ article 74) and in accordance with SECNAVINST 5420.174C, enclosure (1), paragraph 2.24 and 9.3, this former member requests the Board’s clemency relief with up-grade of his characterization of service to under honorable conditions on the basis of his post-service conduct.

PART II - SUMMARY OF SERVICE

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

	Active:	None
	Inactive:	USNR (DEP)		830916 - 830920	COG

Period of Service Under Review:

Date of Enlistment:  830921			Date of Discharge:  870727

Length of Service (years, months, days):

	Active:  	03  04  28
	Inactive:  	None

Age at Entry:  20				Years Contracted:  4

Education Level:  12				AFQT:  65

NEC:  DG 9780  				Highest Rate:  SN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:   1.00 (1)	Behavior:  2.00 (1)		OTA:  2.00 

Military Decorations:  None

Unit/Campaign/Service Awards:  NEM, NUC, SSDR

Nonjudicial Punishment(s):  1		Court(s)-Martial:  (1) SPCM 

Days of Unauthorized Absence:  66

Character, Narrative Reason, and Authority of Discharge:

BAD CONDUCT/Convicted by special court martial; authority:  NAVMILPERSMAN,  Article 3640420.

PART III - CHRONOLOGICAL LISTING OF SIGNIFICANT SERVICE EVENTS1

830921:	Joined CRUITRACOM, NTC, Great Lakes, IL.

840114:	Joined USS MOOSBRUGGER (DD-980), stationed at Charleston Naval Station, SC.

841214:	NJP for violation of UCMJ, Article 92:  Failure to obey a lawful order.
	Award:  CC for 30 days, forfeiture of $75.00, reduction to E-2.  No indication of appeal in the record.

850124:	Joined NAS, Pensacola, FL. for confinement.

850318:	Special Court Martial convened: 
	Charge I:  violation of the UCMJ, Article 86:  Unauthorized absence, Charge II:  violation of the UCMJ, Article 89:  Disrespect toward a superior commissioned officer, 
Charge III:  violation of the UCMJ, Article 91:  3 Specifications, Insubordinate conduct toward warrant, noncommissioned officer, or petty officer.  
	Findings:  to Charge I, guilty. Charge II, guilty, pleas of not guilty entered by MJ, Charge III, specification 1 and 2 guilty, specification 3 guilty by exceptions and substitutions. 
	Sentence:  CHL for 4 months, forfeiture of $400 per month for 4 months, reduction to E-1, Bad Conduct discharge.
	
850327:	Released from confinement.  Returned to full duty.

850419:	Transferred from NAS, Pensacola, FL. 

850504:  	Joined USS VULCAN (AR-5) Norfolk, VA. 

850611:	Convening Authority:  pursuant to pretrial agreement confinement in excess of 75 days was suspended, forfeitures in excess of $400.00 pay per month for 3 months was suspended and BCD was suspended.  All suspensions were for a period of twelve months, from date of trial.

850701:	Report of Declaration of Deserter (NAVPERS 1600-3).  Applicant declared a deserter on 850701 having been an unauthorized absentee since 0700, 850531 from USS VULCAN (AR-5).

850801:	Report of Return of Deserter.  Applicant surrendered to military authorities on 0926, 850731 at USS VULCAN (AR-5).  Returned to military control 0926, 850731. 

850805:	Report of Declaration of Deserter (NAVPERS 1600-3).  Applicant declared a deserter on 850802 having been an unauthorized absentee since 0700, 850801 from USS VULCAN (AR-5).

850809:	Report of Return of Deserter.  Applicant surrendered to military authorities on 1145, 850806 at NAVSTA New York.  Returned to military control 1145, 850806. 

850814:	To pretrial confinement.

851007:	Applicant notified of hearing to vacate suspension of a special court-martial sentence.

851011:	Report of proceedings to vacate suspension of a special court-martial sentence including a Bad Conduct discharge.
 
851028:	Applicant’s motion for Clarification and Enlargement of time considered.  Motion for clarification denied.  Motion for enlargement of time granted.

851028:	SSPCMO:  special court-martial order dated 850611 suspends portion of sentence adjudging a bad conduct discharge, is vacated.  Upon completion of appellate review, the sentence, as affirmed, may be executed without further action.

851129:	NMCCMR:  The findings of guilty and sentence, as approved on review, are affirmed.

851203:	UA from 0715, 851031 to 2230, 851201 charged as non-performance of duty to expedite appellate leave as per PSD legal office.

851213:	Applicant waived clemency review [EXTRACTED FROM NC&PB CARD FILES].

870714:	NMCCMR:  The findings of guilty and sentence, as approved on review, are affirmed.

870708:	SSPCMO:  Article 71c, UCMJ, having been complied with, Bad Conduct discharge is ordered executed. 
 
870727: 	Discharged BAD CONDUCT/Convicted by special court martial, authority:  NAVMILPERSMAN, Article 3640420.

RECORDER’S NOTES:

1  The source for all entries is the service record (includes medical/dental record) unless otherwise noted.

 PART IV - EXTRACT OF PERTINENT REGULATION/LAW

A.  The Naval Military Personnel Manual, (NAVPERS 15560A, effective 15 Jun 87 until 13 Dec 89),  Article 3640420,  DISCHARGE OF ENLISTED PERSONNEL ADJUDGED BY SENTENCE OF COURT‑MARTIAL, states:

1.  The words "discharge" and "discharges" hereinafter used in this article refer to dishonorable discharges and bad conduct discharges adjudged by sentence of court‑martial.

2.  Aside from the responsibilities placed upon reviewing authorities as to the legality and uniformity of sentences, reviewing authorities are vested with the authority to exercise clemency. In order that all reviewing authorities may be able to assess fully the propriety of a sentence and the potential of an accused for future service, when a punitive discharge has been adjudged, it is mandatory that a synopsis of the conduct record of the accused be available.  The convening authority, in those cases where the sentence adjudged extends to a punitive discharge, shall include in his or her initial action a brief synopsis of the accused’s conduct record during the current enlistment including any extensions.  The synopsis shall be included in the court-martial order.  This synopsis should contain, in chronological order:  dates, nature of offenses committed, sentences adjudged and approved, and nonjudicial punishment imposed.  The synopsis should also include medals, awards, commendations, and any other information of a commendable nature.  Although not required, similar action may, if circumstances are deemed appropriate, be taken in other cases.

3.  In any action taken on the record to suspend a court‑martial sentence or any part thereof, which includes a punitive discharge, the convening or supervisory authority should be guided by paragraph 88e, Manual for Courts‑Martial, 1969 (Rev.), and section 0123, Manual of the Judge Advocate General.  The Naval Clemency and Parole Board reviews cases in which an unsuspended punitive discharge is included in the sentence, as provided by SECNAVINST 5815.3, and makes appropriate recommendations to the Secretary of the Navy for restoration to duty on a probationary period in deserving cases.  The Board bases such recommendations on the background of the member concerned, his or her civilian and military history, adjustment in confinement, motivation for future service, and the nature and circumstances of his or her offenses together with the recommendations of the commanding officer of the confining activity and the Commander, Naval Military Personnel Command, in each case.  Nothing stated herein should be construed as limiting the authority of convening and supervisory authorities to suspend the execution of a sentence or any part thereof in worthy cases when such action is deemed appropriate.

4.  Discharges as a result of a court‑martial shall be effected only upon orders from appropriate authority after appellate review of the sentence has been completed and, where applicable, after compliance with SECNAVINST 5815.3.  In those cases where confinement is adjudged in addition to a discharge, the discharge certificate will, where appropriate, be retained in the prisoner's personnel file at the brig, and given to the servicemember upon completion of confinement, or upon transfer to a Federal penal institution, or when the member is to be paroled directly from a military confinement facility.  Even though the discharge has been effected, because the member is serving a sentence imposed by court‑martial, the member remains subject to the Uniform Code of Military Justice.

5.  When an enlisted member who has been sentenced to an unsuspended punitive discharge is serving on board ship or outside the 48 contiguous United States or the District of Columbia, transfer shall be made in accordance with provisions in this Manual to a separation activity.  Transfer in cases of this nature shall not be effected until review has been completed by the officer exercising general court-martial jurisdiction, and appropriate entries have been made in the service record to show the action taken by the officer exercising general court-martial jurisdiction.  Upon the member’s arrival at the separation activity, the commanding officer of that activity shall immediately advise the Judge Advocate General and the Commander, Naval Military Personnel Command.

6.  Members serving within the 48 contiguous United States or District of Columbia sentenced to an unsuspended punitive discharge without confinement or with confinement to be served in the activity's brig shall be retained at the activity pending action in their cases.  If the activity has no brig, such members sentenced to an unsuspended punitive discharge and confinement shall be transferred to an appropriate separation activity for confinement and retention pending action in their cases.

7.  Where execution of a portion of a sentence which includes a discharge is suspended subject to a probationary period, the suspension may be vacated pursuant to the procedure set forth in paragraph 97b of the Manual for Courts-Martial and section 0131, Manual of the Judge Advocate General.  Commanding officers shall give careful consideration to reports of offenses committed by personnel serving in such status and undertake proceedings for the vacation of suspension of the sentence where it is clearly established by the record that such action is appropriate and in the best interests of the Navy.  For a new offense the commanding officer may, as appropriate, impose nonjudicial punishment or refer the offense to a court‑martial, or initiate procedure for a vacation of suspension, or both.  Upon receipt of action vacating suspension of a sentence involving a punitive discharge, the member may be transferred for discharge, or confinement and discharge, as appropriate.  In such cases the instructions above shall be complied with.

B.  SECNAVINST 5420.174C, Enclosure (1), Manual for Discharge Review 1984, Chapter 2, AUTHORITY/POLICY FOR DEPARTMENTAL DISCHARGE REVIEW, paragraph 2.24, Court-Martial Specifications, Presumption Concerning, states:  Relevant and material facts stated in a court-martial specification, shall be presumed by the NDRB Panel as established facts.  With respect to a discharge or dismissal adjudged by a court-martial case tried under the Uniform Code of Military Justice [set forth in Chapter 47 of Title 10 United States Code as amended] the action [of the NDRB] may extend only to a change in the discharge or dismissal for purposes of clemency.  This policy only applies to cases filed with the discharge review board after 6 December 1983.  [Source:  10 U.S.C. 1553, as amended by P.L. 98-209 of 831206.]

C. SECNAVINST 5420.174C, enclosure (1), Manual for Discharge Review 1984, Chapter 9, Standards for Discharge Review, states, in part:

“9.3 Equity of the Discharge

A discharge shall be deemed to be equitable unless:

a.  In the course of a discharge review, it is determined that the policies and procedures under which the applicant was discharged differ in material respects from policies and procedures currently applicable on a service-wide basis to discharges of the type under consideration, provided that:

(1) Current policies or procedures represent a substantial enhancement of the rights afforded a respondent in such proceedings; and

(2) There is substantial doubt that the applicant would have received the same discharge, if relevant current policies and procedures had been available to the applicant at the time of the discharge proceedings under consideration.

b.  At the time of issuance, the discharge was inconsistent with standards of discipline in the military service of which the applicant was a member.

c.  In the course of a discharge review, it is determined that relief is warranted based upon consideration of the applicant's service record and other evidence presented to the NDRB viewed in conjunction with the factors listed in this paragraph and the regulations under which the applicant was discharged, even though the discharge was determined to have been otherwise equitable and proper at the time of issuance.  Areas of consideration include, but are not limited to:

(1) Quality of service, as evidenced by factors such as:

(a) service history, including date of enlistment, period of enlistment, highest rank achieved, conduct and proficiency ratings (numerical and narrative);

(b) awards and decorations;

(c) letters of commendation or reprimand;

(d) combat service;

(e) wounds received in action;

(f) records of promotions and demotions;

(g) level of responsibility at which the applicant served;

(h) other acts of merit that may not have resulted in formal recognitions through an award or commendation;

(i) length of service during the service period which is the subject of the discharge review;

(j) prior military service and type of discharge received or outstanding post-service conduct to the extent that such matters provide a basis for a more thorough understanding of the performance of the applicant during the period of service which is the subject of the discharge review;

(k) convictions by court-martial;

(l) records of nonjudicial punishment;

(m) convictions by civil authorities while a member of the service, reflected in the discharge proceedings or otherwise noted in the service records;

(n) records of periods of unauthorized absence;

(o) records relating to a discharge in lieu of court-martial.

(2) Capability to serve, as evidenced by factors such as:

(a) Total capabilities.  This includes an evaluation of matters such as age, educational level, and aptitude scores.  Consideration may also be given as to whether the individual met normal military standards of acceptability for military service and similar indicators of an individual's ability to serve satisfactorily, as well as ability to adjust to military service.

(b) Family and personal problems.  This includes matters in extenuation or mitigation of the reason for discharge that may have affected the applicant's ability to serve satisfactorily.

(c) Arbitrary or capricious actions.  This includes actions by individuals in authority which constitute a clear abuse of such authority and that, although not amounting to prejudicial error, may have contributed to the decision to discharge the individual or unduly influence the characterization of service.

(d) Discrimination.  This includes unauthorized acts as documented by records or other evidence."

D.  Under the Manual for Courts-Martial, a punitive discharge is authorized for violation of the Uniform Code of Military Justice, Article 86, for unauthorized absence for a period in excess of 30 days and/or Article 85, desertion; if adjudged at a Special or General Court-Martial.

PART V - RATIONALE FOR DECISION

Discussion

	Issues related to the propriety of court-martial findings or sentences are not matters of which the Naval Discharge Review Board (NDRB) grants a change in discharge as a matter of propriety, since it is expressly prohibited by law from making such changes (A and B, Part IV).  However, it has authority to change a discharge or dismissal for purposes of clemency (C, Part IV).  Therefore, the applicant’s case was considered under the pertinent standards of equity to determine if any factors in the case merited clemency.  After a thorough review of the records, supporting documents1, facts, and circumstances associated with this case, the Board determined that the characterization of the applicant’s service is equitable.  The discharge shall remain:  BAD CONDUCT/Conviction by Special Court-Martial, authority:  NAVMILPERSMAN, Article 3640420.

The applicant’s punitive discharge, on 870727, was the sentence of a properly constituted special court-martial which was determined to be legal and proper, affirmed in the legal chain of review, and executed in accordance with applicable provisions of the Naval Military Personnel Manual (A, Part IV).  The court-martial offenses of disrespect toward a superior commissioned officer and insubordinate conduct toward warrant, noncommissioned, petty officer in violation of the Uniform Code of Military Justice (UCMJ), were reflective of a disregard for duty and responsibility.  Such deliberate abandonment of sworn obligation characterizes the applicant’s service as having been performed under conditions warranting a Bad Conduct discharge (BCD). 

The offenses which formed the basis for the BCD, in and of themselves, were sufficient to warrant the discharge.  The applicant was afforded the opportunity to correct his mistakes when the trial judge, pursuant to pretrial agreement, suspended the forfeiture of money and the BCD, and returned the applicant back to full duty.  The applicant during his special court-martial was warned of the consequences of any future misconduct.  He chose not to conform to acceptable military decorum, and violated the terms of his suspension by going UA for 61 days, which could have been grounds for a punitive discharge (D, Part IV), followed by a second UA period of  5 days.  His continuing pattern of misconduct displayed a lack of commitment and a willful disregard for military good order and discipline.  The discharge and characterization were consistent with Navy policy and standards of discipline, and were equitable.

In the applicant’s issue, his representative states “Pursuant to 10 USC 874 (b) (1994) (UMCJ article 74) and in accordance with SECNAVINST 5420.174C, enclosure (1), paragraph 2.24 and 9.3, this former member requests the Board’s clemency relief with up-grade of his characterization of service to 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 (C, Part IV).  While it is true the applicant cannot go back and undo his prior mistakes, he does have the opportunity to contribute in a positive way to society and warrant clemency.  Those contributions that would be looked upon favorably by this, or any other Board, include completed educational pursuits, employment track record, letters of reference, evidence that the applicant has functioned as a contributing member of society and is making a positive impact in the community through volunteer work.  The applicant must prove that his post-service conduct has been above reproach and he is making a valid attempt at making amends for the misconduct he committed during the period of service under review.  At this time the applicant has provided no documentation of his post service conduct, therefore, no relief is warranted.
 
The 15 year window during which applicants may appeal their discharges was established to allow time for establishing oneself in the community and for making these substantial, documented life style changes and community contributions.  The applicant is reminded that he remains eligible for a personal appearance hearing provided that an application is received within 15 years from the date of discharge.

Recorder’s Note:

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

Copy of DD form 214. 
American Legion statement, dated 971217.

PART VI - INFORMATION FOR THE APPLICANT

Decision:

	The Board discerned no inequity in the characterization of the applicant’s service.  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. 

	If you believe that the decision in your case is unclear, not responsive to the issues which you raised, or does not otherwise comport with the decisional documents 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 obtain a copy of DoD Directive 1332.28 by writing to:

		DA Military Review Boards Agency
		Management Information and Support Directorate
		Armed Forces Reading Room
		Washington, D.C.  20310-1809.

	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
		Building 36 Washington Navy Yard
		901 M Street, SE
		Washington, D.C.  20374-5023.