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

 ex-AR, USN
Docket No. ND01-01119

Applicant’s Request

The application for discharge review, received 010823, 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 listed American Legion as the representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 020328.  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), paragraph 2.24 and 9.3, this former member requests the Board's clemency relief with upgrade 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
Letter from Applicant
Character Reference Letter from S___ P___ Taylor County Volunteer
Copies of Service Related Documents (12pgs)
Employment Reference Letter from Chief of Taylor County Fire Service J____ P. K___
Employment Reference Letter from Clerk of Circuit Court W____ M. L___
Partial Letter from Board of County Commissioners
Letter from Veterans Service Officer Taylor County, FL.  W___ J. A____
Copy of Travel Orders (2pgs)
Copy of Applicant's Unsworn Statement (3pgs)
Copy of Veterans Service Listing (3pgs)
Copies of Service Related Documents (17pgs)
Employment Reference Letters (2)
Copy of Character Reference Letter from J____ W. W___, Taylor County Sheriff
Copy of Outpatient Clinic Newsletter
Letter from Veterans Administration (2)
Copies of Service Related Documents (25pgs)
Copy of Selective Service Registration
Cover Letter from American Legion

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PART II - SUMMARY OF SERVICE

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

	Active:   USN			None
	Inactive: USNR (DEP)	800515 - 801001	COG

Period of Service Under Review:

Date of Enlistment:  801002		Date of Discharge:  870702

Length of Service (years, months, days):

	Active:    03  00  14
	Inactive:  None

Age at Entry:  18			Years Contracted:  4 

Education Level:  12			AFQT:  58

Highest Rate:  AA

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  2.80 (1)	Behavior:  1.80 (1)		OTA:  2.80

Military Decorations:  None

Unit/Campaign/Service Awards:  None 

Days of Unauthorized Absence:  1233 

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:

810611:	NJP for violation of UCMJ, Article 92: Violate NAVREG ART. 1151, DTD 730226, to wit: possession of marijuana on 810503.
	Award:  Forfeiture of $250.00 pay per month for 2 months, restriction and extra duty for 45 days, reduction to E-1.  No indication of appeal in the record.

810611:	Counseling Warning:  Unsatisfactory military behavior. Advised of consequences of further deficiencies, and issued discharge warning. 

811022:	NJP for violation of UCMJ, Article 128: Assault on 810801.
	Award:  Forfeiture of $250.00 per month for 1 month (suspended for 6 months), restriction and extra duty for 45 days.  No indication of appeal in the record.

820408:	Report of Declaration of Deserter (NAVPERS 1600-3).  Applicant declared a deserter on 820206 having been an unauthorized absentee since 0001, 820106 from NAVREGMEDCEN ORLANDO, FL.

831118:	Report of Declaration of Deserter (NAVPERS 1600-3).  Applicant declared a deserter on 831113 having been an unauthorized absentee since 0730, 820601 from NAS NORFOLK while awaiting transportation to USS JOHN F. KENNEDY at sea.

850916:	Pretrial Restraint: 850916 to 850925 at NASJAX.

850917:	Report of Return of Deserter.  Applicant surrendered on board NAS Cecil Field, FL at 1200, 850916. Returned to military control 850916 (1200).  Transferred to NAS JACKSONVILLE, FL.  Retained for DISPACT.

851010:	Special Court Martial [trial date 851010]
	Charge I:  violation of the UCMJ, Article 86: Unauthorized absence 820601 – 850916, [1203 days/S].  
	Findings:  to Charge I and specification 1 thereunder, guilty.
	Sentence:  CHL for 60 days, forfeiture of $250.00 per month for 1 month, Bad Conduct discharge.
	CA 851112:  The sentence is approved and excepting the bad conduct discharge will be duly executed.  However, the unserved portion of confinement at hard labor is suspended for 6 months.
	
851010:	Joined the Brig NETC, Newport, RI for confinement.

851114:	Applicant waived clemency review [Extracted from case file].

860113:	NMCCMR:  The findings of guilty and sentence, as approved on review, are affirmed.

870617:	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 870702 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).

Issue 1 states:  “(Equity Issue) Pursuant to 10 USC 874 (b) (UCMJ, Article 74) and in accordance with SECNAVINST 5420.174C, enclosure (1), paragraph 2.24 and 9.3, this former member requests the Board's clemency relief with upgrade of his characterization of service to under honorable conditions on the basis of his post-service conduct.”  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 is authorized to consider outstanding post-service factors in its consideration of circumstances that warrant clemency.  The Board determined the seriousness of the applicant’s misconduct while serving in the military significantly outweighs his post-service accomplishments.  The applicant’s employment, although it is honorable to serve as a firefighter, is not enough to overcome his egregious behavior while enlisted in the Navy.  The Board determined the relief based on this issue is denied.  The applicant 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 based on clemency is not warranted.

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 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 Rm 309
		Washington Navy Yard D.C.  20374-5023