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

ex-SR, USN
Docket No. ND00-01030

Applicant’s Request

The application for discharge review, received 000912, requested that the characterization of service on the discharge be changed to other than 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 010313.  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.  The reason I'm asking for upgrade is because I've matured in a lot of areas now.  I enlisted at a young age, lets say if it were possible I'll do it the right way.  Please consider a positive opportunity for me.

Documentation

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

Copy of DD Form 214

PART II - SUMMARY OF SERVICE

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

	Active:   USN 		None
	Inactive: USNR (DEP)	890919 - 891031	COG

Period of Service Under Review:

Date of Enlistment:  891101		Date of Discharge:  921008

Length of Service (years, months, days):

	Active:    02  09  10
	Inactive:  None

Age at Entry:  22			Years Contracted:  4 

Education Level:  12			AFQT:  28

Highest Rate:  SA

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.50 (2)	Behavior:  3.30 (2)		OTA:  3.50

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM, SSDR, Battle"E"Ribbon, SASMw1* 

Days of Unauthorized Absence:  10 

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:

910116:	NJP for violation of UCMJ, Article 86: Absent without authority for a period of about 30 hours and 45 minutes.
	Award:  Forfeiture of $150.00 per month for 1 month, restriction to the limits of the ship.  No indication of appeal in the record.

910416:	NJP for violation of UCMJ, Article 116: Breach of peace.
	Award:  Forfeiture of $150.00 per month for 1 month, restriction and extra duty for 45 days.  No indication of appeal in the record.

910419:	Retention Warning:  Advised of deficiency (Breach of peace and continued frequent involvement of a discreditable nature with military authorities), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

910810:	NJP for violation of UCMJ, Article 86: Absence from unit, violation of UCMJ, Article 92: Failure to obey other lawful written order.
	Award:  Restriction to the limits of the ship for 15 days, extra duty for 30 days, reduction to E-1.  No indication of appeal in the record.
	
911119:	Special Court Martial 
	Charge I:  violation of the UCMJ, Article 86, (2) Specifications.
	Specification 1:  Unauthorized absence from his unit from 910930 until 911004, [5 days/R.]
	Specification 2:  Unauthorized absence from his unit from 911017 until 911020 [4 days/R].  Charge II: violation of the UCMJ, Article 112a, (2) Specifications. Specification 1: Wrongfully used cocaine on or about 911004, Specification 2: Wrongfully used cocaine on or about 911020. 
	Findings:  to Charge I and II, and specifications 1 and 2 thereunder, guilty.
	Sentence:  Conf for 60 days, Bad Conduct discharge.
	CA 920109:  Sentence approved and ordered executed, except for bad conduct discharge.

911119:	Joined NAVCOMBRIG MIRAMAR, for confinement.

911121:	Applicant waived clemency review [Extracted from NC&PB computer system].

911209:	Released from confinement; to appellate leave.

920605:	NMCCMR:  The findings of guilty and sentence, as approved on review, are affirmed.

921008:	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 921008 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 found that the applicant’s age, education level, and test scores qualified him for enlistment.  While he may feel that his immaturity was a factor that contributed to his action, the record clearly reflects his willful disregard for the requirements of military discipline and demonstrated that he was unfit for further service.  The record is devoid of evidence that the applicant was not responsible for his conduct or that he should not be held accountable for his actions.

Additionally, 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