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

ex-BTFR, USN
Docket No. ND01-00376

Applicant’s Request

The application for discharge review, received 010206, 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 010615.  After a thorough review of the records, 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 one of two options; Due to family matters, the discharged seemed the viable option.  I served four years of service prior to this without incident.  It is based on these issues that I respectfully request an upgrade to honorable.

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			810105 - 850104	HON
	Inactive: USNR (DEP)	801223 - 810104	COG

Period of Service Under Review:

Date of Enlistment:  850305		Date of Discharge:  870908

Length of Service (years, months, days):

	Active:    01  11  23
	Inactive:  None

Age at Entry:  21			Years Contracted:  4 

Education Level:  10			AFQT:  53

Highest Rate:  BT3

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  2.80 (1)	Behavior:  2.80 (1)		OTA:  3.00

Military Decorations:  None

Unit/Campaign/Service Awards:  None 

Days of Unauthorized Absence:  130 

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:

850305:	Reenlisted at CRUITRACOM NTC ORLANDO, FL for 4 years under the NAVET program.

850605:	Report of Declaration of Deserter (NAVPERS 1600-3).  Applicant declared a deserter on 850603 having been an unauthorized absentee since 0730, 850503 from USS MOUNT BAKER.

850909:	Report of Return of Deserter.  Applicant reported onboard NAVSTA CHASN SC at 850905 (0050) as directed by transfer orders from PERSUPPDET, NAVSUPPACT, NEW ORLEANS, LA.  Returned to military control 850905 (0050).

851106:	Special Court Martial
	Charge I:  violation of the UCMJ, Article 86, (2) Specifications.
	Specification 1:  Unauthorized absence 850503 – 850904, [124 days/S.]
	Specification 2:  Unauthorized absence 851002 – 851008, [6 days/S.].  Charge II:  violation of the UCMJ, Article 87, (2) Specifications.
	Specification 1:  Missed movement on 850505, 
	Specification 2:  Missed movement on 851002.
	Findings:  to Charge I and specifications 1 and 2 thereunder, guilty, To Charge II and specifications 1 and 2 thereunder, guilty
	Sentence:  CHL for 75 days, reduction to E-1, Bad Conduct discharge.
	CA 860226:  Sentence approved and ordered executed, except for bad conduct discharge.
	
851107:	Joined NAVBRIG, NAVSTA, PHILA, PA for confinement.

851224:	Applicant waived clemency review.

860108:	Released from confinement

860529:	NMCCMR:  The findings of guilty and sentence, as approved on review, are affirmed.

870819:	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 870908 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, facts, and circumstances unique to this case, the Board found that the discharge was proper and equitable (C and D).

In response to the applicant’s issue, 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.  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.  

There is no law or regulation that provides for the upgrade of an unfavorable discharge based solely on the passage of time or good conduct in the civilian life subsequent to leaving the Service.  However, the Board is authorized to consider post-service factors in the recharacterization of a discharge (D).  Those factors include, but are not limited to, the following:  evidence of continuing educational pursuits (transcripts, diplomas, degrees, vocational-technical certificates), a verifiable employment record (Letter of Recommendation from boss), documentation of community service (letter from the activity/community group) and certification of non-involvement with civil authorities (police records check) in order for consideration for clemency based on post-service conduct.  At this time, the applicant has not provided any documentation of good character and conduct.  Therefore no relief will be granted.  The applicant is encouraged to continue with his pursuits and is reminded that he is eligible for a personal appearance hearing provided the application is received prior to 8 September 2002. 

Pertinent Regulation/Law (at time of discharge)

A.  The Naval Military Personnel Manual, (NAVPERS 15560A), effective 15 Jun 87 until 13 Dec 89, 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 "afls10.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