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

 ex-FR, USN
Docket No. ND02-00285

Applicant’s Request

The application for discharge review, received 020123, 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.  In the acknowledgement letter the applicant was informed that he was approaching the 15 year point for review by this Board and was encouraged to attend a personal appearance hearing in the Washington, D.C. area.  The applicant did not respond.

Decision

A documentary discharge review was conducted in Washington, D.C. on 020815.  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, as submitted

1.  I was young and not really aware of how this has affected my life.  I am still in machine repair and work for a well established company.  I would like to further my career but I am held back by my actions of a misguided youth.  I am sorry for what I have done.  Thank you for your time.

Documentation

In addition to the service record, the following additional documentation, submitted by the applicant, was considered:

Special Award Certificate for Job Performance during Month of March 1993
1993 Employee of the Year Award (Northern Illinois Hospital Services, Inc.)

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: USNR (DEP)	831022 - 840618	COG

Period of Service Under Review:

Date of Enlistment:  840619		Date of Discharge:  870305

Length of Service (years, months, days):

	Active:    02  08  17 (Doesn't exclude lost/confinement time.)
	Inactive:  None

Age at Entry:  19			Years Contracted:  6

Education Level:  12			AFQT:  82

Highest Rate:  FN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  NMF*	Behavior:  NMF		OTA:  NMF

Military Decorations:  None

Unit/Campaign/Service Awards:  Navy "E" Ribbon

Days of Unauthorized Absence:  114

*No Marks Found in service record.

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:

850520:	Unauthorized absence from USS KITTY HAWK (CV63) at NAS North Island CA.

850528:	Returned on board USS KITTY HAWK (CV63) (8 days UA).

850606:	NJP for violation of UCMJ, Article 86:  unauthorized absence from 85MAY20 to 85MAY28 (8 days).
	Award:  Forfeiture of $300 per month for 1 month, restriction and extra duty for 30 days, reduction to E-1 (suspended for 6 months).  No indication of appeal in the record.

850606:	Retention Warning:  Advised of deficiency (unauthorized absence), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 

850825:	Report of Declaration of Deserter (NAVPERS 1600-3).  Applicant declared a deserter on 16AUG85 having been an unauthorized absentee since 0730, 16JUL85 from USS KITTY HAWK.

851022:	USS KITTY HAWK advised CNMPC that applicant declared a deserter and information received indicated member arrested by civil authorities in San Diego, CA on 21 Aug 85 for violation of the California Vehicle Code Section 10851 - auto theft and California Penal Code Section 487.3 - property taken is an automobile, firearm or farm animal.  Applicant appeared in South Bay Municipal Court, Chula Vista, CA on 10 Sep 85, convicted of auto theft and sentenced to 120 days in county jail with 31 days credit for time served.

851102:	Report of Return of Deserter.  Applicant apprehended by civil authorities on 21AUG85 (1249) in San Diego, CA.  Returned to military control 02NOV85 (0505).  

851102:	Pre-trial confinement at Navy Brig, Naval Station San Diego.

851206:	Punishment of reduction in rate to FA suspended at CO's NJP of 85JUN06 vacated due to continued misconduct.

860102:	Special Court Martial
	Charge I:  violation of the UCMJ, Article 86 (1 Specification).
	Specification 1:  Unauthorized absence 850716 – 851102 (106 days/A).
	Findings:  to Charge I and specification thereunder, guilty.
	Sentence:  CHL for 60 days, forfeiture of $410 per month for 2 months, reduction to E-1, bad conduct discharge.
	CA 860218:  Sentence approved and ordered executed, except for bad conduct discharge.
	
860102:	Joined Navy Brig, Naval Station San Diego, for confinement.

860131:	From confinement; to appellate leave.

860425:	NMCCMR:  The findings of guilty and sentence, as approved on review, are affirmed.

861023:	NC&PB clemency not granted; restoration denied.

870203:	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 870305 while on appellate leave with a bad conduct characterization of service due to conviction 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.  Relief denied.

The applicant’s discharge characterization accurately reflects his service to his country.  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.  Relief not warranted.

Pertinent Regulation/Law (at time of discharge)

A.  Naval Military Personnel Manual, (NAVPERS 15560), Change 1/83, effective 
28 Apr 83 until 14 Jun 87, 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