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

 ex-AR, USN
Docket No. ND02-00078

Applicant’s Request

The application for discharge review, received 011012, 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 any representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 020619.  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 5815-010 (formerly 3640420).

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

1.  Please take the following statement into consideration when reviewing my discharge from the Navy.  When I enlisted into the service it was out of desperation trying to better my life and make my marriage work.  My mother in law at the time forced me to enlist or gave me an ultimatum that I would loose my unborn infant forever.  I enlisted and the nightmare began.  She had constant contact with my enlistment officer and once I was stationed kept in touch so as to know where I was stationed and when.  My wife lived with her mother and was constantly calling and writing me telling me how bad it was and how she wanted to leave.  Out of fear for my son being born too early from constant stress and badgering from her mother once I was stationed in school in Pensacola, Fla, my wife moved down and gave birth to my son two days after the move.  For record verification he was born in the Naval hospital on October 22, 1998 5 weeks premature.  At this point I went AWOL to take her to the hospital and stay with her.  We had a very stormy, violent marriage with her mother constantly interfering and threatening.  In my record I went AWOL several times but always returning.  The final time before spending time in the brig was due to the violent actions of my wife three weeks after the baby was born.  She beat me, scratched me and locked me out of the house when a neighbor called the police and she was arrested for family violence/intoxication and had to spend the night in jail.  I again went AWOL to take care of my son to prevent him from being taken into DFACS custody.  At this point she moved back to Birmingham, Alabama with her mother and my son.  This is when I was sent to the brig and processed out.  I would like for you to consider my situation and the mental stress that I was going through dealing with a mother in law that hated me and did everything in her power to destroy me, my marriage and take my son from me as well.  My actions were done out of desperation, I did not know what to do or where to turn.  I made a tragic mistake in handling my situation.  This is all verifiable with court records from Pensacola Naval Base.  I eventually lost the fight to remain married and have moved on to Georgia to start over.  It has been a long hard battle and an expensive lesson to learn.  If I could get my discharge upgraded to general/under honorable conditions I will be able to apply for jobs with a future and provide for my son who is now 2 1/2.  When you are young and in love you make mistakes, some that stay with you for the rest of you life.  I can only hope that the review board can find a small portion of compassion and will consider this upgrade.  I will be eternally grateful for your consideration. If you should need to contact me I can be reached at ---- Street, Thomaston, Georgia 30286.  Thank you for any consideration you may give my review.

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 		None
	Inactive: USNR (DEP)	980610 - 980719	COG

Period of Service Under Review:

Date of Enlistment:  980720		Date of Discharge:  000321

Length of Service (years, months, days):

	Active:    00  07  24
	Inactive:  None

Age at Entry:  21			Years Contracted:  4 

Education Level:  12			AFQT:  74

Highest Rate:  AA

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  NOB		Behavior:  1.00 (1)		OTA:  1.00

Military Decorations:  None

Unit/Campaign/Service Awards:  None 

Days of Unauthorized Absence:  48 

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

BAD CONDUCT/Convicted by special court  martial, authority: NAVMILPERSMAN, Article 5815-010 (formerly 3640420).

Chronological Listing of Significant Service Events:

990324:	Special Court Martial [trial dates 990317 & 990324].
	Charge I:  violation of the UCMJ, Article 86, (9) Specifications.
	Specification 1:  Did, on or about 1830, 981112, without authority, absent himself from his place of duty at which he was required to be, to wit: Room 146, Building 3902, Naval Air Technical Training Center, Naval Air Station, Pensacola, Florida, and did remain so absent until on or about 0645, 981113; Spec 2: Unauthorized absence from his organization 981127 until 981128; Specification 3: Did, on or about 981129, without authority, fail to go at the time prescribed to his appointed place of duty, to wit: Military Training Instructor Office, Barracks B; Specification 4: Unauthorized absence from his organization 981205 until 981208(3days); Spec 5: Unauthorized absence from his organization 981209 until 981222(13days); Specification 6: Did, on or about 0600, 981223 without authority, absent himself from his organization, to wit:  Naval Air Technical Training Center, located at Pensacola, Florida, and did remain so absent until on or about 0645, 981223; Spec 7: Unauthorized absence from his organization 981225 until 981228(3days); Spec 8: Unauthorized absence from his organization 981229 until 990123(25days); Spec 9: Did, on or about 2100, 990128 without authority, absent himself from his place of duty at which he was required to be to wit:  Naval Air Technical Training Center, located at Pensacola, Florida, and did remain so absent until 1120, 990129.  Charge II: violation of the UCMJ, Article 92: (3 Specifications), Spec 1: On or about 981123, was derelict in the performance of those duties in that he was willfully and wrongfully consuming an alcoholic beverage while in a Phase I status, as it was his duty to refrain from doing; Spec 2: On or about 981129, was derelict in the performance of those duties in that he was willfully and wrongfully consuming an alcoholic beverage while in a Phase I status, as it was his duty to refrain from doing; Spec 3: On or about 990126, was derelict in the performance of those duties in that he was willfully and wrongfully consuming an alcoholic beverage while in a Phase I status, as it was his duty to refrain from doing.  Charge III: violation of the UCMJ, Article 107: On or about 990129, with intent to deceive, sign an official statement, to wit: "I have never used drugs before or during my enlistment in the Navy" or words to that affect, which statement was totally false, and was then known by the said Airman Apprentice C____ E. H____ to be so false.  Charge IV: violation of the UCMJ, Article 112a: Did, within the continental United States, on or about 981228, wrongfully use marijuana.
	Findings:  to Charge I and specifications 1 thru 5, 7 and 8 thereunder, guilty, specification 6 thereunder, not guilty. To Charge II and specifications 1,2 and 3 thereunder, guilty.  To Charge III and specification thereunder, guilty.  To Charge IV and specification thereunder, guilty.
	Sentence:  CHL for 3 months, forfeiture of $500.00 per month for 3 months, reduction to E-1, Bad Conduct discharge.
	CA 990616:  Sentence approved, and except for that part of the sentence extending to a bad conduct discharge will be executed; however, the execution of that part of the sentence extending to confinement in excess of 54 days is suspended for a period of 6 months from the date sentence was announced, at which time, unless sooner vacated, the suspended part of the sentence will be remitted without further action.
	
991228:	NMCCCA:  The findings of guilty and sentence, as approved on review, 
	are affirmed.

000321:	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 in absentia 000321 with bad conduct 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.  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 (C, Part IV).  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.   Relief denied.

The applicant’s discharge characterization accurately reflects his service to his country.  The discharge was proper and equitable.  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 relief, based on post-service conduct.  The applicant did not provide sufficient documentation to warrant an upgrade to his discharge.  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.  The Naval Military Personnel Manual, (NAVPERS 15560C), Change 22, effective 15 Dec 98 to Present, Article 5815-010 (formerly 3640420), Executing a Dishonorable or Bad Conduct Discharge.

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 DC  20374-5023