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

 ex-FR, USN
Docket No. ND00-00545

Applicant’s Request

The application for discharge review, received 000328, requested that the characterization of service on the discharge be changed to honorable.  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 001005.  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.  My discharge was too harsh because I was to young to consider the penalties for my actions.  I had been on an overseas mission with many of my friends.  I became addicted to alcohol and as a youth could not stop myself upon return.  My violent acts stem from too much time at sea and too much drinking when in port.  The theft was merely mischief.  Since my discharge I have quit drinking, smoking and all mischief making to become a serious student.  I feel that my supporting documents will speak for me on that issue of education.

Documentation

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

Copy of DD Form 214
Character Reference Letters (3)
Transcript from University of Texas at San Antonio (3pgs)
Copy of Dean's List Congratulation Letter
Letter of Appreciation
Copies of Enlisted Performance Evaluation Reports (2) 

PART II - SUMMARY OF SERVICE

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

	Active:   USN 		None
	Inactive: USNR (DEP)	890717 - 890719	COG

Period of Service Under Review:

Date of Enlistment:  890720		Date of Discharge:  930126

Length of Service (years, months, days):

	Active:    03  04  16
	Inactive:  None

Age at Entry:  18			Years Contracted:  4 

Education Level:  12			AFQT:  79

Highest Rate:  DCFA

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.40 (1)	Behavior:  3.00 (1)		OTA:  2.40

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM

Days of Unauthorized Absence:  None 

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:

900726:	NJP for violation of UCMJ, Article 128: Assault another service member by kicking him on or about 900626.
	Award:  Restriction and extra duty for 30 days, reduction to E-1 (suspended for 3 months).  No indication of appeal in the record.

900726:	Retention Warning:  Advised of deficiency (You failed to properly control your actions.  Went to CO's NJP for assaulting GSM3 B_____ on 900626), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 

901103:	NJP for violation of UCMJ, Article 91: Disrespect to a superior petty officer, violation of UCMJ Article 117: Provoking words or gestures on 901026.
	Award:  Reduction to E-1.  No indication of appeal in the record.

910905:	Special Court Martial [trial date 910905]
	Charge I:  violation of the UCMJ, Article 134: Falsely and wrongfully purporting a military ID Card on 910718; Charge II: violation of the UCMJ, Article 121: Stole military ID Card on 910718; Charge III: violation of the UCMJ, Article 91: Unlawfully assault a superior petty officer on 910803.
	Findings:  to Charge I, II, III and specification thereunder, guilty.
	Sentence:  CHL for 4 months, forfeiture of $375.00 per month for 4 months, Bad Conduct discharge.
	CA 910905:  Sentence approved and except for that part of the sentence extending to a bad conduct discharge, will be executed.  The execution of that part of the sentence adjudging any confinement in excess of 60 days is suspended for 6 months from date of trial.
	
910905:	Joined NAS BRIG, NAS, JAX, FL for confinement.

910920:	Applicant waived clemency review .

911002:	From confinement; to appellate leave.

920828:	NMCCMR:  The findings of guilty and sentence, as approved on review, are affirmed.

930114:	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 930126 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, 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