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

 ex-SN, USN
Docket No. ND00-00497

Applicant’s Request

The application for discharge review, received 000307, requested that the characterization of service on the discharge be changed to honorable.  The applicant requested a personal appearance before a traveling panel closest to Denver, Colorado.  The applicant listed the Colorado Division of Veterans Affair as his 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 000928.  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 on authorized leave at the time I was supposed to be UA.

2.  I believe that the punishment was to severe for the confusion and of of being UA.

Documentation

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

Copy of DD Form 214
Forty-six pages from applicant's service/medical record
Statement from applicant's father dated August 20, 1999
Police record check dated October 1, 1999
Statement from applicant's wife dated October 18, 1999
Documentation from Front Range Community College
Police record check dated July 30, 1999
Character reference from pastor dated October 10, 1999
Character reference dated June 18, 1998
Character reference dated June 18, 1998
Character reference dated June 13, 1999
Character reference dated July 21, 1999
Character reference dated August 1999
Character reference dated August 20, 1999

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: USNR (DEP)	890622 - 890709	COG

Period of Service Under Review:

Date of Enlistment:  890710		Date of Discharge:  920811

Length of Service (years, months, days):

	Active:    03  01  02
	Inactive:  None

Age at Entry:  18			Years Contracted:  4 (24 months extension)

Education Level:  11			AFQT:  68

Highest Rate:  SN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  NOB		Behavior:  NOB		OTA:  NOB

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM 

Days of Unauthorized Absence:  80 

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:

900821:	NJP for violation of UCMJ, Article 86: Unauthorized absence 19Aug90 to 20Aug90, violation of UCMJ Article 134: Jumping from vessel into the water.
	Award:  Restriction and extra duty for 15 days.  No indication of appeal in the record.

910329:	Report of Declaration of Deserter (NAVPERS 1600-3).  Applicant declared a deserter on 910329 having been an unauthorized absentee since 0715, 910227 from USS ANCHORAGE (LSD-36).

910502:	Report of Return of Deserter.  Applicant apprehended by civil authorities on 910502 by Lakewood Sheriff's Department.  Returned to military control 910502.

910502:	Applicant to pre-trial confinement.

910612:	Special Court Martial
	Charge I:  violation of the UCMJ, Article 86, (2 specifications).
	Specification 1: Unauthorized absence 2Jan91 – 17Jan91, [15 days.]
	Specification 2: Unauthorized absence 27Feb91 to 2May91 (64 days/ apprehended).
	Findings:  to Charge I and specifications 1 and 2 thereunder, guilty.
	Sentence:  CHL for 45 days, forfeiture of $200 per month for 2 months, reduction to SR, Bad Conduct discharge.
	CA 910715:  Sentence approved and ordered executed, except for bad conduct discharge.

910613:	Applicant request appellate leave.
	
910930:	NMCCMR:  The findings of guilty and sentence, as approved on review, are affirmed.

920811:	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 920811 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 issues 1 and 2, the Board found, 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. (B, Part IV)   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 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.

Pertinent Regulation/Law (at time of discharge)

A.  Naval Military Personnel Manual, (NAVPERS 15560C), effective 15 Aug 91 until 04 Mar 93, 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 DC  20374-5023