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

ex-AKAR, USN
Docket No. ND00-00960

Applicant’s Request

The application for discharge review, received 000809, 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 listed American Legion as his representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 010406.  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.  (Equity Issue) Pursuant to 10 USC 874 (b) (UCMJ, Article 74) and in accordance with SECNAVINST 5420.174C, enclosure (1), paragraph 2.24 and 9.3, this former member requests the Board's clemency relief with up-grade of his characterization of service to under honorable conditions on the basis of his post-service conduct.

Documentation

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

Copy of DD Form 214
State of Colorado Substitute Authorization Certificate
Character Reference Letter
Employee of the Month Certificate
Letter from Applicant 
Criminal Record Request 

PART II - SUMMARY OF SERVICE

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

	Active:   USN 		None
	Inactive: USNR (DEP)	881021 - 881114	COG

Period of Service Under Review:

Date of Enlistment:  881115		Date of Discharge:  920303

Length of Service (years, months, days):

	Active:    03  00  20
	Inactive:  None

Age at Entry:  26			Years Contracted:  4 

Education Level:  16			AFQT:  77

Highest Rate:  AKAN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  2.30 (2)	Behavior:  2.30 (2)		OTA:  2.80

Military Decorations:  None

Unit/Campaign/Service Awards:  SSDR, AFEM 

Days of Unauthorized Absence:  54 

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:

900222:	Report of Declaration of Deserter (NAVPERS 1600-3).  Applicant declared a deserter on 900220 having been an unauthorized absentee since 1500, 900121 from TACELRON ONE THREE SEVEN at NAS WHIDBEY ISLAND, WA.

900317:	Apprehended by Civil Authority in Corpus Christi, TX, 0250 hours, having been an unauthorized absentee, absent over liberty since 1500, 900121, a period of 54 days.  Member apprehended pursuant to outstanding DD-553.  Delivered to military control at Navy Brig, Corpus Christi, TX, 0250 hours, 900317.

900317:	Pretrial Restraint 900317 to 900420.  Judicially ordered credit to applied to confinement.

900420:	Special Court Martial 
	Charge I:  violation of the UCMJ, Article 86: Unauthorized absence 900121 – 900317, [54 days/A.]
	Findings:  to Charge I and specifications 1 thereunder, guilty.
	Sentence:  CHL for 45 days, forfeiture of $450.00 per month for 2 months, reduction to E-1, Bad Conduct discharge.
	CA 900418:  Sentence approved but the execution of that part of the sentence extending to confinement which exceeds forty days is suspended for a period of six months from the date of trial and forfeiture of pay which exceeds $200.00 pay per month for a period two months is suspended for six months from the date of trial, at which time unless sooner vacated, the suspended portion of the sentence will be remitted without further action.  Except for bad conduct discharge, the sentence is ordered executed.
	
900911:	NC&PB clemency not granted; restoration denied.

910614:	NMCCMR:  The findings of guilty and sentence, as approved on review, are affirmed.

920303:	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 920303 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).

The applicant’s representative submitted the following as issue 1: (Equity Issue) Pursuant to 10 USC 874 (b) (UCMJ, Article 74) and in accordance with SECNAVINST 5420.174C, enclosure (1), paragraph 2.24 and 9.3, this former member requests the Board's clemency relief with up-grade of his characterization of service to under honorable conditions on the basis of his post-service conduct.  Relevant and material facts stated in a court-martial specification are presumed by the NDRB to be established facts.  With respect to a discharge or dismissal adjudged by a court-martial case tried under the Uniform Code of Military Justice, the action of the NDRB extends only to a change in the discharge or dismissal for purpose of clemency. (B, art IV)  The NDRB is authorized to consider post-service factors in the recharacterization of a discharge.  However, there is no law or regulation which provides that an unfavorable discharge may be upgraded based solely on the passage of time, or good conduct in the civilian life subsequent to leaving the service.  Normally, to permit relief, an error or injustice must have been found to have existed during the period of enlistment in question.  Outstanding post-service conduct, to the extent that such matters provide a basis for a more thorough understanding of the applicant’s performance and conduct during the period of service under review, is considered.  The applicant provided two employment certificates, a character reference letter and a criminal record certification as documentation of his post-service.  While these documents are commendable, the applicant's efforts need to be more encompassing than those provided.  The applicant should have produced evidence of continuing educational pursuits, more verification of employment and documentation of community service in order for consideration for clemency based on post-service conduct.  At this time the applicant has not provided sufficient documentation of good character and conduct.  Therefore no relief will be granted.  He is highly encouraged to continue with his pursuits and is reminded that he is eligible for a personal appearance hearing provided the application is received within 15 years from the date of discharge.  Relief denied.

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