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

ex-AR, USNR
Docket No. ND01-00579

Applicant’s Request

The application for discharge review, received 010402, 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 designate a representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 010928.  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
Copy of DD Form 215

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:  860224	Date of Discharge:  891221

Length of Service (years, months, days):

	Active:    03  09  28 (Doesn't exclude lost time)
	Inactive:  None

Age at Entry:  21			Years Contracted:  8

Education Level:  12			AFQT:  40

Highest Rate:  AN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.6 (1)	Behavior:  3.8 (1)		OTA:  3.6

Military Decorations:  None

Unit/Campaign/Service Awards:  SSR, Battle "E" Ribbon

Days of Unauthorized Absence:  470 

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:

870319:	Unauthorized absence from USS SARATOGA, missed ships movement.

870406:	Surrendered to USS SARATOGA detachment 0180 (18 days).

870509:	NJP for violation of UCMJ, Article 86:  unauthorized absence from unit  from 87MAR19 to 87APR06, violation of UCMJ Article 87:  missing ship's movement on 87MAR19.
	Award:  Forfeiture of $250 per month for 2 months (forfeiture of $150 pay per month for two months suspended for six months), restriction and extra duty for 15 days.  No indication of appeal in the record.

870909:	Retention Warning:  Advised of deficiency (non-judicial punishment in which you were found guilty of an unauthorized absence and missing ships movement), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

871010:	Retention Warning:  Advised of deficiency (failure to pay just debts with Universal Distributors Co.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

871111:	NJP for violation of UCMJ, Article 134:  urinating in trash can on or about 87OCT21; violation of UCMJ Article 87:  missing ship's movement on 87MAR19.
	Award:  Forfeiture of $150 per month for 1 month, confinement on bread and water for three days.  No indication of appeal in the record.

880105:	Report of Declaration of Desertion (NAVPERS 1600-3):  Declared deserted 88JAN02 having been an unauthorized absentee since 0815, 87DEC01 from USS SARATOGA (CV60).

880805:	Report of Return of Deserter.  Applicant apprehended by civil authorities on 88AUG04 (2005) at Sioux City, IA.  Returned to military control 88AUG04 (2045) at the Navy Absentee Collection Unit, Great Lakes, pending transfer to NACU Norfolk for further transfer to parent command (247 days).

881018:	Report of Declaration of Desertion (NAVPERS 1600-3):  Declared deserted 88OCT05 having been an unauthorized absentee since 88SEP06 from USS SARATOGA (CV60).

890331:	Report of Return of Deserter.  Applicant apprehended by civil authorities on 89MAR30 (2153) at Sioux City, IA.  Returned to military control 89MAR30 (2314) at the Navy Absentee Collection Unit, Great Lakes, pending transfer to NACU Norfolk for further transfer to parent command  (205 days).

890426:	Special Court Martial 
	Charge I:  violation of the UCMJ, Article 86, 2 Specifications.
	Specification 1:  Unauthorized absence from 88SEP06 until 89MAR30, [205 days/A.]
	Specification 2:  Unauthorized absence from 87DEC01 until 88AUG04, [247 days/A.]
	Findings:  to Charge I and specifications 1 and 2 thereunder, guilty.
	Sentence:  Confinement for 60 days, reduction to E-1, Bad Conduct discharge.
	CA 890625:  Sentence approved and ordered executed, except for bad conduct discharge.
	
890426:	Joined Naval Brig, Naval Station, Norfolk, VA, for confinement.

890625:	From confinement; to appellate leave.

890718:	NMCCMR:  The findings of guilty and sentence, as approved on review, are affirmed.

891221:	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 891221 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).

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.  The applicant failed to provide any documentary evidence to demonstrate positive community service, employment history, and clean police record since discharge.  Relief based on clemency is not warranted.

The applicant is eligible for a personal appearance hearing provided the application is received within 15 years from the date of discharge.  Representation at personal appearance hearing is recommended.

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