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

ex-OSSR, USN
Docket No. ND02-00328

Applicant’s Request

The application for discharge review, received 020128, 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.  Subsequent to the application for review, the applicant obtained American Legion as his representative. 

Decision

A documentary discharge review was conducted in Washington, D.C. on 021008.  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.  (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 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:

None

PART II - SUMMARY OF SERVICE

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

	Active:   USN			None
	Inactive: USNR (DEP)	860929 - 870719	COG

Period of Service Under Review:

Date of Enlistment:  870720		Date of Discharge:  900731

Length of Service (years, months, days):

	Active:    03  00  11
	Inactive:  None

Age at Entry:  17			Years Contracted:  4 

Education Level:  12			AFQT:  53

Highest Rate:  OSSA

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  NOB*		Behavior:  NOB		OTA:  NOB

Military Decorations:  None

Unit/Campaign/Service Awards:  None 

Days of Unauthorized Absence:  72 

*No markings obtained by the Board

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:

880722:	NJP for violation of UCMJ, Article 86: UA.
	Award:  Forfeiture of $150.00 pay per month for 1 month, restriction and extra duty for 15 days.  No indication of appeal in the record.

890811:	Report of Declaration of Deserter (NAVPERS 1600-3).  Applicant declared a deserter on 890811 having been an unauthorized absentee since 0715, 890712 from USS CAYUGA (LST-1186).

891108:	Special Court-Martial 
	Charge I:  violation of the UCMJ, Article 87: (2 Specifications), Spec. 1: Missed ship's movement through design on or about 0800, 890613; Spec. 2: Missed ship's movement through design on or about 0800, 890807.  Charge II: violation of the UCMJ, Article 112a: (2 Specifications), Spec. 1: Wrongfully used cocaine at or near Long Beach, California, on or about 890711; Spec. 2: Wrongfully used marijuana at or near Long Beach, California, on or about 890711.  Charge III: violation of the UCMJ, Article 86: (2 Specifications), Spec. 1: Unauthorized absence from on or about 890613 until on or about 890711; Spec. 2: Unauthorized absence from on or about 890712 until on or about 890820.  Additional Charge: violation of the UCMJ, Article 86: (3 Specifications), Spec. 1: Unauthorized absence from on or about 891023 until on or about 891025; Spec. 2: Unauthorized absence from on or about 891028 until on or about 891030; Spec. 3: Unauthorized absence from on or about 0715, 891101 until on or about 0700, 891102.
	Findings:  to Charge I and specification 1 thereunder, guilty, specification 2 thereunder, not guilty.  To Charge II and specification 1 thereunder, not guilty, to specification 2 thereunder, guilty except for the words and figure "Long Beach" and "11," substituting therefore the words and figure "Los Angeles" and "9."  To Charge III and specification 1 and 2 thereunder, guilty.  To Additional Charges and specification 1 and 2 thereunder, guilty, to specification 3 thereunder, guilty, except the figures "0715" and "0700.” 
	Sentence:  CHL for 2 months, forfeiture of $466.00 pay per month for 2 months, reduction to E-1, Bad Conduct discharge.
	CA 891229:  Sentence approved and ordered executed, except for the Bad Conduct discharge.
	SA:  see SSPCMO.

891108:	Joined Navy Brig Naval Station, Long Beach, California, for confinement.

891108:	Waiver of Clemency Review.

891222:	Released from confinement and restored to full duty status.  Retained onboard for further disposition and appellate leave processing.

900228:	NMCCMR:  The findings of guilty and sentence, as approved on review, are affirmed.

900731:	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 900731 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.  The applicant’s discharge characterization accurately reflects his service to his country.  The applicant’s use of illegal drugs and multiple unauthorized absences are considered more than one incident.  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.  The NDRB has no authority to change reenlistment codes or make recommendations to permit reenlistment, reentry, or reinstatement into the Naval Service or any other branch of the Armed Forces.   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, employment record, documentation of community service, certification of non-involvement with civil authorities and credible evidence that the applicant is drug free, are examples of verifiable documentation 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.  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 15560A), Change 9, effective 14 Dec 89 until 14 Aug 91, 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