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

 ex-ICFR, USN
Docket No. ND02-00287

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 personal appearance hearing before a traveling panel closest to Jackson, TN.  The applicant did not list any representative on the DD Form 293.  In the acknowledgement letter to the applicant, he was informed that the Naval Discharge Review Board (NDRB) does not travel; all hearings are held in the Washington DC area.  The NDRB also advised that the board first conducts a documentary review prior to any personal appearance hearing.

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.  Since I have been out of the military, I have tried my best to be an outstanding citizen.
I know that I messed up while in the military due to family problems, however, I continue to be proud of my service to my Country.  Unfortunately, the only evidence I have to support my request for a discharge up-grade is the way I have served my family and community since my discharge.  I believe when my records are reviewed, until I began having family problems, I was a good sailor.

Documentation

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

Copy of DD Form 214
Character reference dated December 4, 2001
Character reference dated December 4, 2001
Character reference from Reverend J_ S_, undated
Character reference from Pastor J_F_, undated

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: USNR (DEP)	871204 - 880725	COG

Period of Service Under Review:

Date of Enlistment:  880726		Date of Discharge:  930505

Length of Service (years, months, days):

	Active:    04  09  10
	Inactive:  None

Age at Entry:  18			Years Contracted:  4

Education Level:  12			AFQT:  53

Highest Rate:  ICFA

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  NMF*			Behavior:  NMF		OTA:  NMF

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM

Days of Unauthorized Absence:  304

*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:

900308:	Special Court Martial
	Charge I: violation of the UCMJ, Article 86:
	Specification 1: Unauthorized absence 2400, 10Oct89 – 0800, 23Jan90, (104 days/surrendered).
	Findings: to Charge I and specifications 1 and 2 thereunder, guilty.
	Sentence: Forfeiture of $250 per month for 3 months, HL without confinement for 50 days, restriction for 50 days, reduction to ICFR.
	CA 900510: Sentence approved and ordered executed.

900725:	NJP for violation of UCMJ, Article 86: Unauthorized absence 0620, 4Jun90 until 1935, 2Jul90 (28 days/surrendered), violation of UCMJ, Article 87: Missing movement on 18Jun90.
	Award: Forfeiture of $362 per month for 2 months, correctional custody unit for 30 days.  No indication of appeal in the record.

900726:	Retention Warning:  Advised of deficiency (Unauthorized absence and missing movement), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 

900727:	Report of Declaration of Deserter (NAVPERS 1600-3).  Applicant declared a deserter on 900727 having been an unauthorized absentee since 0150, 27Jul90 from USS EMORY S. LAND (AS-39).

910413:	Special Court Martial
	Charge I: violation of the UCMJ, Article 86:
	Specification: Unauthorized absence from 27Jul90 to 16Jan91, (172 days/surrendered).
	Findings: to Charge I and specification thereunder, guilty.
	Sentence: CHL for 1 month, forfeiture of $500 per month for 1 month, bad conduct discharge.
	CA 911118:  Sentence approved and ordered executed, except for bad conduct discharge.

910507:	From confinement and placed on appellate leave.

930108:	NMCCMR:  The findings of guilty and sentence, as approved on review, are affirmed.

930505:	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 930505 with a bad conduct characterization of service due to conviction 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.  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.  Relief not warranted.

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.  Representation at a personal appearance hearing is recommended but not required.  

  
Pertinent Regulation/Law (at time of discharge)

A.  The Naval Military Personnel Manual, (NAVPERS 15560C), Change 5, effective 05 Mar 93 until 02 Oct 96, 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 DC  20374-5023