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

ex-HR, USN
Docket No. ND01-00410

Applicant’s Request

The application for discharge review, received 010213, 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 did not list a 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 010907.  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/COURT MARTIAL CONVICTION, 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 forme member requests the Board's clemency relief with up-grade of his characterization of service to General (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
NAMALA ltr to Applicant
Special Court-Martial Supplemental Order No. 95-2068 dtd 29 Nov 95
Travel Certificate Separation Without Orders dated 95NOV29

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: USNR (DEP)	910424 - 910908	COG

Period of Service Under Review:

Date of Enlistment:  910909		Date of Discharge:  951129

Length of Service (years, months, days):

	Active:    04  02  21 (Doesn't exclude lost time)
	Inactive:  None

Age at Entry:  18			Years Contracted:  4 

Education Level:  12			AFQT:  42

Highest Rate:  HN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  4.0 (2)	Behavior:  3.87 (3)		OTA:  3.93

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM

Days of Unauthorized Absence:  105 

Character, Narrative Reason, and Authority of Discharge (at time of issuance):

BAD CONDUCT/COURT MARTIAL CONVICTION, authority: NAVMILPERSMAN, Article 3640420.

Chronological Listing of Significant Service Events:

931202:	NJP for violation of UCMJ, Article 92:  failure to obey a lawful order.
	Award:  Forfeiture of $100 per month for 1 month.  No indication of appeal in the record.

940707:	Report of Declaration of Deserter (NAVPERS 1600-3).  Applicant declared a deserter on 940704 having been an unauthorized absentee since 0001, 940604 from 1st MarDiv Det 29 Palms, CA.

940920:	Report of Return of Deserter.  Applicant surrendered to military authorities on 94JUN04 (0015) at TPU Great Lakes. Transfer under TAO to MCAS 29 Palms, CA, arrival at 2005.

940921:	Placed in pre-trial confinement.

941130:	Special Court Martial [trial date 941130]
	Charge I:  violation of the UCMJ, Article 86.
	Specification:  On or about 4 Jun 94, without authority, absent himself from his unit and did remain so absent until he was apprehended on or about 20 Sep 94.
	Findings:  to Charge I and specification thereunder, guilty.
	Sentence:  Bad Conduct discharge.
	CA 950322:  Sentence approved and ordered executed, except for bad conduct discharge.

950322:	Placed on appellate leave.

950811:	NMCCCA:  The findings of guilty and sentence, as approved on review, are affirmed.

951129:	SSPCMO:  In accordance with UCMJ Article 58a, automatic reduction to paygrade E-1 was effected 22 March 1995.  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 951129 with a Bad Conduct Discharge due to court martial conviction (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 up-grade of his discharge characterization to General (under Honorable conditions) on the basis of his post-service conduct.  Normally, to permit relief, an error or injustice must have existed during the period of enlistment in question.  No such error or injustice occurred during the applicant’s enlistment.  Additionally, 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 civilian life, subsequent to leaving the service.  However, the NDRB is authorized to consider outstanding post-service factors in the recharacterization of a discharge, 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.  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.  Evidence of continuing educational pursuits, an employment record, documentation of community service, certification of non-involvement with civil authorities and proof of his not using drugs, are examples of verifiable documents that should have been provided to receive consideration for clemency, based on post-service conduct.  The applicant did not provide any of these documents.  He is reminded that he remains eligible for a personal appearance hearing, provided an application is received, at the NDRB, within 15 years from the date of his discharge.  The applicant can provide additional documentation to support any claims of post-service accomplishments at that time.  Legal representation at a personal appearance hearing is highly recommended but not required.  Relief denied. 

Pertinent Regulation/Law (at time of discharge)

A.  Naval Military Personnel Manual, (NAVPERS 15560C), Change 5, effective 
05 Mar 93 until 02 Oct 96, Article 3640420, DISCHARGE OF ENLISTED PERSONNEL ADJUDGED BY SENTENCE OF COURT‑MARTIAL

B.  Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 2, AUTHORITY/POLICY FOR DEPARTMENTAL DISCHARGE REVIEW.  

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 Rm309
		Washington Navy Yard DC  20374-5023