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

 ex-ENFR, USN
Docket No. ND02-00105

Applicant’s Request

The application for discharge review, received 011017, requested that the characterization of service on the discharge be changed to honorable or general/under honorable conditions.  The applicant requested a documentary record discharge review.  The applicant did not list any 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 020715.  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).

The NDRB did note an administrative error on the original DD Form 214.  Block 3, Social Security No. should read: “249  49  4771” vice “249  49  4656”, Block 25, Separation Authority should read: “NAVMILPERSMAN, Article 5815-010” vice “MILPERSMAN 3640420 AND SPCMSONO 99-1579 dtd 99DEC08”, Block 28, Narrative Reason for Separation should read:  “Convicted by special court martial” vice “COURT-MARTIAL CONVICTION”.  The original DD Form 214 should be corrected or reissued as appropriate. 

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as submitted

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:

Statement from applicant
Copy of social security card
One page from applicant's service record

Copy of DD Form 214

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: USNR (DEP)	960306 - 960922	COG

Period of Service Under Review:

Date of Enlistment:  960923		Date of Discharge:  991208

Length of Service (years, months, days):

	Active:    03  02  16
	Inactive:  None

Age at Entry:  19			Years Contracted:  4

Education Level:  12			AFQT:  32

Highest Rate:  ENFN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  NMF*		Behavior:  NMF		OTA:  NMF

Military Decorations:  None

Unit/Campaign/Service Awards:  None 

Days of Unauthorized Absence:  217

* No Marks Found

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:

980101:	Applicant declared a deserter on 980101 having been an unauthorized absentee since 0630, 1Dec97 from USS THEODORE ROOSEVELT (CVN 71).

980708:	Report of Return of Deserter.  Applicant surrendered 1635, 6Jul98 at USS THEODORE ROOSEVELT (CVN 71) (217 days/surrendered).

980915:	Special Court Martial
	Charge I:  violation of the UCMJ, Article 86:
	Specification:  Unauthorized absence 0630, 1Dec97 – 1635, 6Jul98 (217 days/surrendered).
	Findings: to Charge I and specification thereunder, guilty.
	Sentence:  CHL for 21 days, Bad Conduct discharge.
	CA 990213:  Sentence approved and ordered executed, except for bad conduct discharge.

981002:	Applicant released from confinement.

990203:	Attorney's request for clemency to disapprove or suspend the BCD.

990908:	NMCCCA:  The findings of guilty and sentence, as approved on review, 
	are affirmed. 

991208:	SSPCMO:  Article 71c, UCMJ, having been complied with, Bad Conduct discharge will be executed.		

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 991208 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.  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.  The Board has no authority to upgrade a discharge for the sole purpose of enhancing employment opportunities as requested in the issue.  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