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

ex-RMSR, USN
Docket No. ND00-00196

Applicant’s Request

The application for discharge review, received 991129, requested that the characterization of service on the discharge be changed to Entry Level Separation or Uncharacterized.  The applicant requested a documentary record discharge review.  The applicant listed VETERANS OF FOREIGN WARS as his representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 000803.  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

1.  The applicant 's Enlisted Performance Record indicated overall marks of 3.6.

2.  The applicant accepts responsibility for his action.  He stated, "I regret what happened and believe I have a debt owed to the USN for not completing my part of the pledge.

3.  Outstanding post-service conduct.  The applicant has since married and is raising a family.  He has a solid work history and a commitment to education as referenced by his many degrees to include a BS from Clemson.  In addition, he is a certified commercial air diver.

Documentation

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

Copy of DD Form 214
Copies from service record (12pgs)
Letter from applicant (2pgs)
Letter of recommendation for Naval College Programs
Letter from Congressman  B____ D____ (2)
Copy of Letter for Commendation
Copy of Reference Letter from T____ & K____ Law Office (2pgs)
Copy of Letter of Recommendation from Department Head of TriCounty Technical College
Copy of Letter for Recommendation from Location Director of W___ D____
Copy of Bachelor of Science Degree
Copy of Associate in Public Service Degree
Copy of Associate in Arts Degree
Copy of Associate in Science Degree in Marine Technology
Copy of Commercial Air Diver Certificate
Copy of Underwater Burning Certificate
Copy of Bridge Inspection Certificate
Copy of Level II Ultrasonic Weld Inspection Certificate
Copy of Underwater Inspection and Non-Destructive Testing to Level of Asnt Level II MPI and Level 1 Ultrasonics Certificate
Copy of Fingerprint Science Certificate

PART II - SUMMARY OF SERVICE

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

	Active:   USN			None
	Inactive: USNR (DEP)	None

Period of Service Under Review:

Date of Enlistment:  850110		Date of Discharge:  880113

Length of Service (years, months, days):

	Active:    03  00  04
	Inactive:  None

Age at Entry:  18			Years Contracted:  4 

Education Level:  12			AFQT:  75

Highest Rate:  RMSN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.60 (1)	Behavior:  3.60 (1)		OTA:  3.60

Military Decorations:  None

Unit/Campaign/Service Awards:  None 

Days of Unauthorized Absence:  188 

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:

860612:	NJP for violation of UCMJ, Article 92: Failure to obey lawful order, violation of UCMJ Article 107: Possession of 2 Driver's License with intent to deceive, violation of UCMJ Article 111: Operating a passenger car while drunk.
	Award:  Forfeiture of $200.00 per month for 2 months, restriction and extra duty for 30 days, reduction in rate (suspended for 6 months).  No indication of appeal in the record.

861023:	Report of Declaration of Deserter (NAVPERS 1600-3).  Applicant declared a deserter on 861022 having been an unauthorized absentee since, 860922 from NAS Meridian, MS.

870330:	Report of Return of Deserter.  Applicant surrendered to military authorities on 870330 (1130) at NAS Meridian, MS. Returned to military control 870330 (1130).  Retained onboard for disciplinary action.

870506:	Special Court Martial [trial dates 870506]
	Charge I:  violation of the UCMJ, Article 86:  Unauthorized absence 860922 – 870330, [188 days/S], Charge II: violation of the UCMJ, Article 91: Willful disobeyance of a lawful order on or about 860922; Charge III: violation of the UCMJ, Article 128: Unlawful assault on another person on or about 860905.
	Findings:  to Charge I, II and III, guilty.
	Sentence:  CHL for 2 months, forfeiture of $200.00 per month for 2 months, reduction to E-1, Bad Conduct discharge.
	CA 870630:  Sentence approved and except for the portion of the sentence extending to bad conduct discharge will be executed..
	
870506:	Applicant waived clemency review [EXTRACTED FROM NC&PB COMPUTER SYSTEM].

870625:	Release from confinement and returned to full duty status.

870820:	NMCCMR:  The findings of guilty and sentence, as approved on review, are affirmed.

880111:	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 880113 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 the applicant’s issue 1, the Board determined this issue to be without merit.  The applicant cites his overall performance record of 3.6 as a reason for upgrading his discharge.  The applicant’s performance record, prior to his misconduct and subsequent Special Court Martial, contained marks worthy of an Honorable discharge. However, his misconduct negated the good he accomplished in his short career.  The characterization of his discharge was based on his entire enlistment and not just the good portion.  Desertion is a serious offense.  His discharge was proper and equitable.  Relief denied.

In the applicant’s issue 2, the Board determined this issue is without merit.  The applicant states, he accepts responsibility for his actions and believes he has a debt owed to the USN.  The applicant was held accountable for his misconduct, through Special Court Martial, then released from active duty.  He is no longer obligated to the USN for any service.  The discharge was proper and equitable.  Relief denied.

In the applicant’s issue 3, the Board determined this issue is without merit.  The applicant claims his post-service conduct entitles him to relief.  The applicant has made a commendable attempt at establishing a reputation of good character and conduct, since his discharge from the Navy.  His post-service conduct was considered 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 this discharge review.  The applicant was court martialed for desertion (UA over 180 days), willfully disobeying a lawful order and unlawful assault on another person.  It was very clear to the Board that the applicant had total disregard for Navy rules and regulations, while serving in the military.  His post-service conduct is insufficient to warrant recharacterization of his discharge.  Additionally, the applicant requested that his discharge be changed to Entry Level Separation or Uncharacterized.  The applicant does not qualify for such a discharge.  The requirements for Entry Level Separation/Uncharacterized are 180 consecutive days of military service or less.  The discharge was proper and equitable.  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, AUTHORITY/POLICY FOR DEPARTMENTAL DISCHARGE REVIEW.  

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