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

 ex-ABFAR, USN
 Docket No. ND00-00085
 
Applicant’s Request

The application for discharge review, received 991019, requested that the characterization of service on the discharge be changed to general/under honorable conditions.  The applicant requested a documentary record discharge review.  The applicant did not list any representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 000713.  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.  I was absent without leave for a total of approximately twelve months during my enlistment.  I was having severe family problems, as my father was abusive to my mother, culminating in their divorce.  I was essentially on my own at age 9, when I enlisted in the Navy, I turned to drinking as everyone else was doing it and I wanted to fit in. When I went on leave, I started binge drinking.  It was like I couldn't pass a bar without stopping for a drink. I tried counseling in service, but it had no effect.  Every time I went on leave, I wound up AWOL.  Finally, at the end of my enlistment, I was Court Martialed for my actions.

2.  I am requesting that the Board consider upgrading my discharge to General Under Honorable Conditions.  My only crime was unauthorized absence.  I did not hurt anyone, never stole anything, and also did my job when not exposed to alcohol.  I had every intention of making it a career, but could not keep from drinking.

3.  I have turned my life around, quit drinking, an attending school, go to church and am deeply involved in my community.  My wife works at City Hall, and I am always available to lend a hand where needed.            .

Documentation

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

Copy of DD Form 214
Copy of Police Record Check
Reference Letter from Assistant Pastor
Character Reference Letters (3)

PART II - SUMMARY OF SERVICE

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

	Active:   USN			None
	Inactive: USNR (DEP)	770730 - 770901	COG

Period of Service Under Review:

Date of Enlistment:  770902		Date of Discharge:  850819

Length of Service (years, months, days):

	Active:    04  06  15
	Inactive:  None

Age at Entry:  18			Years Contracted:  4 

Education Level:  12			AFQT:  60

Highest Rate:  ABFAN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  2.88 (5)	Behavior:  3.13 (6)		OTA:  3.26

Military Decorations:  None

Unit/Campaign/Service Awards:  NEM 

Days of Unauthorized Absence:  740 

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:

791009:	Summary Court Martial for violation of UCMJ, Article 86: UA from 790811-790831[20days/].
	Sentenced to restriction for 30 days aboard USS DUBUQUE (LPD-8)
	CA: 791009: Sentence approved and ordered executed.

800528:	NJP for violation of UCMJ, Article 86: (2 Specs), UA from 800418-800506[18days/S], Spec 2: UA from 800508-800509 [1day/S]
	Award:  Oral Reprimand, restriction and extra duty for 15 days, reduction to E-2.  No indication of appeal in the record.

810121:	Special Court Martial [trial date 810121]
	Charge I: violation of the UCMJ, Article 86: Unauthorized absence 800630 – 801030, [122 days/S]
	Findings:  to Charge I and specification thereunder, guilty.
	Sentence:  CHL for 90 days, forfeiture of $300.00 per month for 4 months, reduction to E-1.
	CA 810203:  Sentence approved and will be duly executed, however, the execution of that portion thereof adjudging forfeitures in excess of $300.00 pay per month for three months, is hereby suspended for a period of one year from the date of trial, at which time, unless sooner vacated, the suspended portion of the sentence will be remitted without further action.
	
810304:	Released from confinement and restored to full duty.

810828:	Special Court Martial [trial date 810828]
	Charge I: violation of the UCMJ, Article 86: Unauthorized absence 810307 – 810615, [122 days/S]
	Findings:  to Charge I and specification thereunder, guilty.
	Sentence:  CHL for 5 months, forfeiture of $250.00 per month for 4 months, reduction to E-1.
	CA 811026:  Sentence approved and will be duly executed.

811231:	Released from confinement and restored to full duty.

820227:	To UA.

820302:	From UA [3days/S]

820307:	To UA.

820310:	From UA [3days/S]. 

820404:	To UA.
 
820407:	From UA [3days/S].
 
821122:	Report of Declaration of Deserter (NAVPERS 1600-3).  Applicant declared a deserter on 821007 having been an unauthorized absentee since 0730, 820907 from USS INDEPENDENCE.

840803:	Report of Return of Deserter.  Applicant surrendered to military authorities on 840731 (0830) at TPU NAVSTA NORFOLK. Returned to military control 840731 (0830).  Retained onboard TPU NAS NORVA pending return to USS INDEPENDENCE.

840810:	Pretrial Restraints 840810 to 841012.

841012:	Special Court Martial [trial dates 841012]
	Charge I: violation of the UCMJ, Article 86: Unauthorized absence 820907 – 840731, [693 days/S].  
	Findings:  to Charge I and specification thereunder, guilty.
	Sentence:  CHL for 4 months, forfeiture of $275.00 per month for 4 months, Bad Conduct discharge.
	CA 841212:  Sentence approved and ordered executed, except for bad conduct discharge.

850114:	Applicant waived clemency review [EXTRACTED FROM NC&PB CARDS FILES].

850122:	Released from confinement and restored to full duty.
	
850315:	NMCCMR:  The findings of guilty and sentence, as approved on review, are affirmed.

850815:	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 850819 with a bad conduct due to convicted by a 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 applicant’s issue 1, the Board does not accept alcohol abuse as a factor sufficient to exculpate the applicant from the consequences of his misconduct.  While the Board recognizes that alcoholism and alcohol abuse are not, in themselves, offenses which constitute grounds for punishment, it reminds applicants who commit offenses while drinking that they are still responsible for their actions.  They must accept the consequences of their misconduct or misbehavior, whether committed before or after they received rehabilitation treatment.  Relief denied.

In issue 2, the applicant states that his “only crime was unauthorized absence”.  The Board found that the applicant received a Summary Court Martial for unauthorized absence, two Special Court Martials for unauthorized absence, was declared a deserter, and then received a third Special Court Martial for unauthorized absence.  The applicant as found guilty in all cases for a total of 740 days of unauthorized absence.  The applicant stated he tried to discontinue drinking, but was unable to do so.   The NDRB recognizes that serving in the Navy is very challenging.  Our country is fortunate to have men and women willing to endure the hardships and sacrifices required in order to serve their country.  It must be noted that most Sailors serve honorably and well and therefore earn honorable discharges.   In fairness to those Sailors, commanders and separation authorities are tasked to ensure that undeserving Sailors receive no higher characterization than is due.  While the NDRB respects the fact that the applicant tried, his service is equitably characterized as being performed under Bad Conduct Discharge conditions. Relief is not warranted.

In response to applicant’s issue three, there is no law or regulation that provides for the upgrade of an unfavorable discharge based solely on the passage of time or good conduct in the civilian life subsequent to leaving the Service.  However, the Board is authorized to consider post-service factors in the recharacterization of a discharge (D).  Those factors include, but are not limited to, the following:  evidence of continuing educational pursuits (transcripts, diplomas, degrees, vocational-technical certificates), a verifiable employment record (Letter of Recommendation from boss), documentation of community service (letter from the activity/community group) and proof of his not using drugs (detoxification certificate, AA meeting attendance or letter documenting participation in the program) in order for consideration for clemency based on post-service conduct.  The applicant has provided insufficient documentation of good character and conduct to warrant an upgrade.  Therefore no relief will be granted. 

Pertinent Regulation/Law (at time of discharge)

A.  Naval Military Personnel Manual, (NAVPERS 15560), Change 1/83, effective 
28 Apr 83 until 14 Jun 87, Article 3640420, DISCHARGE OF ENLISTED PERSONNEL ADJUDGED BY SENTENCE OF COURT‑MARTIAL

B.  Secretary of the Navy Instruction 5420.174C of 22 August 19984 (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 Rm 309
		Washington Navy Yard, D.C.  20374-5023