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

 ex-AZAR, USN
Docket No. ND00-00056

Applicant’s Request

The application for discharge review, received 991014, requested that the characterization of service on the discharge be changed to honorable or general/under honorable conditions.  The applicant requested a personal appearance hearing before a travel panel closest to Orlando, Florida.  The applicant did not list any representative on the DD Form 293.  In the acknowledgement letter to the applicant, the applicant was informed that the Naval Discharge Review Board (NDRB) first conducts a documentary review prior to any personal appearance hearing.

Decision

A documentary discharge review was conducted in Washington, D.C. on 000616.  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/COURT MARTIAL CONVICTION, authority: NAVMILPERSMAN, Article 3640420.  Discharged in absentia.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

Prior to the documentary discharge review, the applicant introduced no issues as block 8 on the DD Form 293 is blank. 

Documentation

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

None

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: USNR (DEP)	901213		COG

Period of Service Under Review:

Date of Enlistment:  901214		Date of Discharge:  961125

Length of Service (years, months, days):

	Active:    05  11  12
	Inactive:  None

Age at Entry:  18			Years Contracted:  4 (19 months extension)

Education Level:  12			AFQT:  35

Highest Rate:  AZAN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.90 (4)	Behavior:  3.85 (4)		OTA:  3.85

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM 

Days of Unauthorized Absence:  None  [74 days confinement, 898 days appellate leave]

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:

940323:	Special Court Martial (Trial dates: 22Mar94 and 23Mar94]
	Charge I: violation of the UCMJ, Article 81.
	Specification: Conspiracy to commit assault on 25Dec93.
	Charge II: violation of the UCMJ, Article 116.
	Specification: Riot or breach of peace on 25Dec93
	Charge III: violation of the UCMJ, Article 128, (5 specifications).
	Specification 1: Unlawfully strike an unidentified white Frenchman in the face and/or body with his fists on 25Dec93.
	Specification 2: Unlawfully strike an unidentified white Frenchman in the face and or body with his fists on 25Dec93.
	Specification 3: Unlawfully strike an unidentified white French woman in the face and/or body with his fists on 25Dec93.
	Specification 4: Unlawfully strike an Aviation Ordnanceman in the face and/or body with his fists on 25Dec93.
	Specification 5: Commit assault by striking him in the face with his fist and did thereby intentionally inflict grievous bodily harm upon him, to wit: a broken jaw on 25Dec93.
	Findings:  to Charge I, II, and III and specifications thereunder, guilty.
	Sentence: Confined for 3 months, forfeiture of $500 per month for 3 months, reduction to AZAR, bad conduct discharge.
	CA 940823: Sentence approved and ordered executed, except for bad conduct discharge.
	
940323:	Joined U.S. Naval Waterfront Brig, U.S. Naval Station, Rota, Spain, for confinement.

940607:	From confinement; to appellate leave.

951102:	NMCCMA: The findings of guilty and sentence, as approved on review, are affirmed.  

960305:	USCAAF: Request for appeal denied.  

961125:	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 961125 with a bad conduct due to court martial conviction (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).

The applicant introduced no decisional issues for consideration by the Board.

Relevant and material facts stated in a court-martial specification are presumed by the NDRB to be established facts.  With respect to a discharge or dismissal adjudged by a court-martial case tried under the Uniform Code of Military Justice, the action of the NDRB extends only to a change in the discharge or dismissal for purpose of clemency. 
The following is provided for the applicant’s edification.  The NDRB is authorized to consider post-service factors in the recharacterization of a discharge.  The applicant must be aware that 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, an error or injustice 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, may be considered by the NDRB.  The applicant is reminded that he is eligible for a personal appearance hearing provided the application is received within 15 years from the date of discharge.  Representation at personal appearance hearing is highly recommended.  Relief denied.
 
Pertinent Regulation/Law (at time of discharge)

A.  Naval Military Personnel Manual, (NAVPERS 15560C), Change 5, effective 
05 Mar 93 until 02 Oct 96, 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 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