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

ex-AMSAR, USN
Docket No. ND01-00244

Applicant’s Request

The application for discharge review, received 001227, requested that the characterization of service on the discharge be changed to Honorable and the reason for 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.  Subsequent to the application, the applicant obtained representation by the American Legion.

Decision

A documentary discharge review was conducted in Washington, D.C. on 010615.  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

1.  (Equity Issue)  Pursuant to 10 USC 874 (b) (UCMJ, Article 74) and in accordance with SECNAVINST 5420.174C, enclosure (1), paragraphs 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

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: None

Period of Service Under Review:

Date of Enlistment:  780717		Date of Discharge:  870304

Length of Service (years, months, days):

	Active:    08  07  19
	Inactive:  None

Age at Entry:  18			Years Contracted:  4 (13 months extension)

Education Level:  12			AFQT:  21

Highest Rate:  AMS3

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.76 (6)	Behavior:  3.70 (6)		OTA:  3.74

Military Decorations:  None

Unit/Campaign/Service Awards:  MUC, NEM, ASM, GCM

Days of Unauthorized Absence:  1038

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:

821020:	NJP for violation of UCMJ, Article 86: Unauthorized absence from 0001, 31Aug82 to 1030, 5Oct82 (34 days/surrendered).
	Award: Forfeiture of $100 per month for 2 months, restriction and extra duty for 45 days, reduction to AMSAN.  Reduction suspended for 6 months.  No indication of appeal in the record.
830504:	Special Court Martial
	Charge I: violation of the UCMJ, Article 134:
	Specification 1: Wrongful use of marijuana.
	Findings: to Charge I and specification 1 thereunder, guilty.
	Sentence: Forfeiture of $100 per month for 6 months, reduction to AMSAN.
	CA 830523:  Sentence approved and ordered executed.

830601:	Report of Declaration of Deserter (NAVPERS 1600-2). Applicant declared a deserter on 830601 having been an unauthorized absentee since 0730, 830502 from NAS PT MUGU CA.

860203:	Applicant to pretrial confinement.

860211:	Report of Return of Deserter.  Applicant apprehended by civil authorities on 860203 (2300) at Long Beach Police Department, Long Beach, CA.  Returned to military control 860204 (1240).  Delivered to TPU San Diego, CA.

860321:	Special Court Martial
	Charge I: violation of the UCMJ, Article 86:
	Specification: Unauthorized absence 0730, 5May83 to 1200, 3Feb86 (1004 days/apprehended).
	Findings: to Charge I and specification 1 thereunder, guilty.
	Sentence: CHL for 120 days, forfeiture of $420 per month for 4 months, reduction to AMSAR, Bad Conduct discharge.
	CA 860501:  Sentence approved and ordered executed, except for bad conduct discharge.
	SA:  see SSPCMO.

860321:	Applicant to confinement.

860513:	Applicant released from confinement, to appellate leave.

860620:	NMCCMR: The findings of guilty and sentence, as approved on review, are affirmed.

861021:	COMA: Request for appeal denied.

870209:	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 870304 with a Bad Conduct Discharge, due to Convicted by a 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).

Issue 1.  The applicant requests the Board’s clemency relief with an upgrade of the characterization of his service to Under Honorable conditions on the basis of his post-service conduct.  The NDRB is authorized to consider 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.  However, there is no law or regulation that 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 be found to have existed during the period of enlistment in question.  No such error or injustice is evident in the applicant’s service record.   In determining whether a case merits a change based on post-service conduct, the NDRB considers the length of time since discharge, the applicant's record of community service, employment, conduct, educational achievements, and family relationships. Verifiable proof of any post-service accomplishments must be provided in order for the applicant to claim post-service conduct and behavior as a reason to upgrade a less than Honorable discharge.  The applicant's efforts need to be more encompassing than those provided.  The applicant should have produced evidence of continuing educational pursuits, a verifiable employment record, documentation of community service, certification of non-involvement with civil authorities and proof of his not using drugs in order to receive consideration for clemency, based on post-service conduct.  At this time the applicant has not provided sufficient documentation of good character and conduct.  Relief is denied.

Pertinent Regulation/Law (at time of discharge)

A.  Naval Military Personnel Manual, (NAVPERS 15560), Change 1/83, effective 
28 Apr 83 until 14 Jun 87, 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, D.C.  20374-5023