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

ex-AR, USN
Docket No. ND00-00779

Applicant’s Request

The application for discharge review, received 000601, requested that the characterization of service on the discharge be changed to honorable or 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 010104.  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.  To the review board; I believe my discharge was inequitable because it was based on one very delicate isolated incident.  I served the military with all that I had given up the right to be a mother first.  Due to the fact that I had a child that was very ill at the time, I felt I had no other choice, but to do what I did to get to my son.  Prior to me leaving the Navy to come home t see about and/or get my son, I received excellent reviews.  I asked for a leave of absence because my mother could no longer taken care of him by herself.  My son constantly stayed in an out of the hospital of Jacksonville, FL.and also at home in Cleveland, Ohio where my mom was constantly taking off from work, resulting in her losing her job.  Setting all of that aside, I spent time in the brig along with receiving an OTH.  I knew that by taking unauthorized leave would result in some type of punishment, but I truly feel that I received the maximum punishment possible.  My legal counsel also agreed that the punishment I received was rather stiff.  I had never been in any other trouble and no other adverse action had ever been taken.  As a matter of fact, I was coming up for petty officer 3rd class.  The legal counsel that I had been assigned to, Lt T____ was trying to push for a lighter discharge, but all I was able to get was a OTH.

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:   USN 		None
	Inactive: USNR (DEP)	900709 - 900912	COG

Period of Service Under Review:

Date of Enlistment:  900913		Date of Discharge:  920826

Length of Service (years, months, days):

	Active:    01  09  05
	Inactive:  None

Age at Entry:  25			Years Contracted:  4 

Education Level:  12			AFQT:  55

Highest Rate:  AN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  NOB		Behavior:  NOB		OTA:  NOB

Military Decorations:  None

Unit/Campaign/Service Awards:  None 

Days of Unauthorized Absence:  40 

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:

900914:	Retention Warning:  Advised of deficiency (Despite your defective enlistment and induction due to fraudulent entry into naval service as evidenced by your failure to disclose your pre-service civil involvement: Speeding in Akron, Ohio, May 84, Paid $99. Fine).  Advised of consequences of further deficiencies, and issued discharge warning. 

910627:	Special Court Martial [trial date 910627]
	Charge I:  violation of the UCMJ, Article 86, (2) Specifications.
	Specification 1:  Unauthorized absence 910312 – 910321, [10 days/S.]
	Specification 2:  Unauthorized absence 910411 - 910510, [30 days/S].   Charge II: violation of the UCMJ, Article 112a: Wrongful use of marijuana.  Additional Charge: violation of the UCMJ, Article 112a: Wrongful use of marijuana.
	Findings:  to Charge I and specifications 1 and 2 thereunder, guilty.  To Charge II and specification 1 thereunder, guilty; to Additional Charge and specification thereunder, guilty.
	Sentence:  CHL for 45 days, forfeiture of $500 per month for 2 months, reduction to E-1, Bad Conduct discharge.
	CA 910726:  Sentence approved, except for that part of the sentence extending to a bad conduct discharge, will be executed but the execution of the part of the sentence extending to confinement more than thirty days is suspended for six months, at which time, unless the suspension is sooner vacated, the suspended part of the sentence will be remitted without further action.
	
910627:	Joined Navy Brig, Naval Air Station, Jacksonville, FL, for confinement.

910717:	Applicant waived clemency review [EXTRACTED FROM NC&PB COMPUTER SYSTEM].

910726:	From confinement; to appellate leave.

920109:	NMCCMR:  The findings of guilty and sentence, as approved on review, are affirmed.

920826:	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 920826 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 she 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