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

 ex-MSSR, USN
Docket No. ND99-00891

Applicant’s Request

The application for discharge review, received 990616, requested that the characterization of service on the discharge be changed to general/under honorable conditions.  The applicant requested a personal appearance hearing review.  The applicant listed American Legion as the representative on the DD Form 293.  The applicant's Scheduling Notice for a personal appearance hearing mailed, on 991207 to applicant's last known address, was returned due to the address and the post office unable to forward.  A documentary discharge review was conducted and applicant has forfeited his right to have his case reviewed by this Board again.

Decision

A documentary discharge review was conducted in Washington, D.C. on 000317.  After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, NDRB discerned no impropriety or 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.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues (verbatim)

1.  (EQUITY ISSUE)  Pursuant to 10 USC 874 (b) (UCMJ article 74) and in accordance with SECNAVINST 5420.174C, enclosure (1), paragraphs 2.24 and 9.3, 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:

Copy of DD Form 214 (3 copies)
Military Service Record pages (11)
Applicant's letter of explanation (10 pages)
Extracts from Service Medical Record (11 pages)
East Orange Police Department Letter of Good Conduct dated 10-20-98

PART II - SUMMARY OF SERVICE

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

	Active:    None
	Inactive:  USNR (DEP)	830620 - 840611	COG

Period of Service Under Review:

Date of Enlistment:  840612		Date of Discharge:  880415

Length of Service (years, months, days):

	Active:    03  10  04 (Doesn't exclude lost time)
	Inactive:  None

Age at Entry:  18			Years Contracted:  4 

Education Level:  12			AFQT:  31

Highest Rate:  MSSN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.8 (1)	Behavior:  4.0 (1)		OTA:  3.8

Military Decorations:  None

Unit/Campaign/Service Awards:  SSDR, NUC 

Days of Unauthorized Absence:  100 

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:

860826:	UA from USS MAHAN (located at NavSta Charleston, SC) at 1830 this date.  Member's intentions unknown.

860928:	Report of Declaration of Deserter (NAVPERS 1600-3).  Applicant declared a deserter on 25SEP86 having been an unauthorized absentee since 1800, 26AUG86 from USS MAHAN.

861113:	Apprehended by Norfolk Area Shore Patron and turned over to USS MAHAN at 1935 this date.  Member retained onboard (80 days UA)

861116:	UA from USS MAHAN at 0730 this date.  Members intentions unknown.

861206:	Apprehended by Norfolk Area Shore Patrol and turned over to USS MAHAN at 1420 this date.  Member retained onboard. (20 days UA)

861206:	Placed in pre-trial confinement.

870122:	Special Court Martial 
	Charge I:  violation of the UCMJ, Article 86, 2 Specifications.
	Specification 1:  Unauthorized absence, 26AUG86 - 13NOV86 [80 days/A.]
	Specification 2:  Unauthorized absence, 16NOV86 - 6DEC86 [20 days/A.]
	Charge II:  violation of the UCMJ, Article 87:missing movement through neglect on 26SEP86.
	Charge III:  violation of the UCMJ, Article 134:  break restriction on 16NOV86.
	Findings:  to Charge I and specification 1  - guilty excepting "he was apprehended" and  specification 2 - guilty.  
Charge II - guilty
	Charge III - guilty
	Sentence:  CHL for 90 months, reduction to E-1, Bad Conduct discharge.
	CA 870702:  Sentence approved and ordered executed, except for bad conduct discharge, but the execution of that part of the sentence adjudging CHL in excess of 75 days is suspended for 12 months from 22JAN87, at which time unless the suspension is sooner vacated, the suspended part of the sentence will be remitted without further action.
	SA:  see SSPCMO.

870122:	Joined Naval Brig Norfolk, for confinement.

870206:	From confinement; to appellate leave.

870206:	Joined TPU Naval Station, Norfolk, VA.

870311:	Applicant waived clemency review. [EXTRACTED FROM NC&PB card files].

870825:	NMCCMR:  The findings of guilty and sentence, as approved on review, are affirmed.

880307:	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 880415 with bad conduct due to convicted by special court martial (A).  The Board presumed regularity in the conduct of governmental affairs (B).  After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, the Board found that the discharge was proper and equitable (C and D).

In response to the applicant’s equity issue 1, 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.   The applicant's case was considered under the pertinent standards of equity to determine if any factors in this particular case merited clemency.  The NDRB found the applicant’s service record devoid of any mitigating or extenuating factors sufficient to offset the seriousness of the offenses for which the discharge was awarded.  The applicant’s post-service documentation  was likewise devoid of any considerable factors.  The Board also found, after reviewing the record of trial, that the applicant requested he be awarded a Bad Conduct Discharge during the proceedings.  Relief denied.

Pertinent Regulation/Law (at time of discharge)

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.

B.  Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984) enclosure (1), Chapter 2, paragraph 2.24, COURT-MARTIAL SPECIFICATION, PRESUMPTION CONCERNING.

C.  Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 9, paragraph 9.2, PROPRIETY OF THE DISCHARGE.

D.  Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 9, paragraph 9.3, EQUITY OF THE DISCHARGE.

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 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
		Washington Navy Yard
		720 Kennon Street SE Rm 309
		Washington, DC 20374-5023