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

 ex-AR, USNR
Docket No. ND02-00699

Applicant’s Request

The application for discharge review, received 020422, requested that the characterization of service on the discharge be changed to honorable.  The Applicant requested a personal appearance hearing discharge review before the Board in the Washington National Capital Region.  The Applicant listed Civilian Counsel as the representative on the DD Form 293.

Decision

A personal appearance discharge review hearing was conducted in Washington, D.C. on 030410.  After a thorough review of the testimony, records, supporting documents, facts and circumstances unique to this case, NDRB discerned no impropriety or inequity in the characterization of the Applicant’s service at the time of discharge.  However, after consideration of the Applicant’s substantial post-service accomplishments the Board determined that partial relief was warranted on the basis of clemency.  The Board’s vote was three to two that the character of the discharge shall change.  The discharge shall change to:  UNDER HONORABLE CONDITIONS (GENERAL)/CONVICTION BY A SPECIAL COURT-MARTIAL, authority: MILPERSMAN 3640420.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as submitted

1.  Petitioner requests an upgrade of his discharge as clemency for good post-discharge citizenship and rehabilitation.

Documentation

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

Copy of DD Form 214
Supplemental Special Court-Martial Order (2 pages)
Special Court-Martial Summary of Charges & Sentence 
Special Court-Martial Convening Order (4 pages)
Letter to President B_ dated September 19, 2001 (2 pages)
Letter to the United States Navy dated September 19, 2001
Letter from State of California Dept of Justice Bureau of Criminal Justice and Information dated 15 November 2001
Letter from Applicant to Mr F_ Newspaper Editor dated December 12, 2000 (2 pages)
Bachelor of Science Degree (Occupational Behavior)
Law School Acceptance Certificate
Certificate of Completion (2001 Honolulu Marathon)
Employment Letter of Congratulation (Manager of the Quarter) dated April 4, 1997
Career Opportunities Computer Printout from Hotel Nikko San Francisco dated November 13, 2000
Religious Autobiography (10 pages)
Attachment to Annual Appraisal/Review January 2000
Letter from White House to Applicant (AIDS epidemic) dated October 3, 1997 
Certificate of Completion (Airline and Travel Industry Program)
Letter of Participation in NCHRA's Spring Certification Study Group dated May 6, 1999
Letter from S_ M. B_, Law Admission Evaluator February 20, 2001
Official Undergraduate Academic Record (2 pages) dated September 25, 2001
Transcript of Academic Record
Letter of Congratulation (Lilly Endowment Inc./Hispanic Scholarship Fund Scholar) dated April 2, 2001
Letter of Congratulation (Charles Schwab & Co., Inc./Hispanic Scholarship Fund Scholar) dated March 13, 2000
Statement from Applicant (3 pages)
Letter of Recommendation from C_ D_, Director of USF Regional Oakland Campus dated October 4, 2001
Reference Letter from Rev. Dr. Schulze dated March 13, 2000
Letter of Recommendation from G_ J_
Résumé (4 pages)
Letter from Applicant
University of San Francisco Commencement Ceremony Photograph dated December 2000
Letter from L_ M. F_ dated April 9, 2003
Essay from Applicant dated November 6, 2000
Résumé (2 pages)
Statement from Applicant to the Board (5 pages)

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	None
	Active:   USN			None

Period of Service Under Review:

Date of Enlistment:  821215		Date of Discharge:  870424

Length of Service (years, months, days):

	Active:    03  09  21
	Inactive:  00  03  26

Age at Entry:  18			Years Contracted:  6 

Education Level:  12			AFQT:  50

Highest Rate:  AA

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.40 (2)	Behavior:  2.30 (2)		OTA:  3.40

Military Decorations:  None

Unit/Campaign/Service Awards:  None

Days of Unauthorized Absence:  7

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:

840313:	Pretrial confinement 840313 to 840315.

840525:	Special Court-Martial.
	Charge I:  violation of the UCMJ, Article 81: Did on or about 840310, conspire with Personnelman Second Class S_ A. C_, U.S. Navy, to commit an offense under the UCMJ, to wit:  With intent to defraud, did falsely pretend to be the authorized user of a "VISA" credit card, number 4337 0021 1036 7135, then knowing such pretenses to be false, and by means thereof did wrongfully and unlawfully obtain from the Glodin Restaurant, Keflavik, Iceland, service, of a value of about $35.00 to wit: meals and alcoholic beverages; and in order to effect the object of conspiracy, the said V_ did present for payment the said "VISA" credit card in satisfaction of payment for services received from the said Glodin Restaurant.  Charge II: violation of the UCMJ, Article 92: Did on or about 841203, violate a lawful general order, to wit: Paragraph 5f, Commander Iceland Defense Forces Instruction 1050.3k, dated 790507, by wrongfully being inside the bounds of U.S. Naval Station, Keflavik, Iceland without proper authority.  Charge III: violation of the UCMJ, Article 134: (5 Specifications), Specification 1: Did on or about 840211, wrongfully and unlawfully steal certain mail matter, to wit: a letter addressed to Ensign M_ S. C_, U.S. Navy, from the desk of the said C_, before said letter actually received by the said C_, the person to whom it was directed; Specification 2: Did at Hotel Berg, Reykjavik, Iceland, on or about 840311, wrongfully, willfully, and unlawfully impersonate a commissioned officer of the United States Navy, by showing the credit card and a passport application of Ensign M_ S. C_, U.S. Navy, to E_ A_, Desk Clerk, Hotel Berg, Reykjavik, Iceland, with intent to defraud by such misrepresentation; Specification 3: Did, in and around Amsterdam, Republic of the Netherlands, between 840307 and 840309, with intent to defraud, falsely pretend to be the authorized user of a "VISA" credit card number 4337 0021 1036 7135, then knowing that the pretenses were false, and by means thereof did wrongfully and unlawfully obtain from Marriott Hotel, Amsterdam, Republic of the Netherlands, service, of a value of about $102.72, to wit: lodging; Specification 4: Did, in and around Keflavik, Iceland, on or about 840310, with intent to defraud, did falsely pretend to be the authorized user of a "VISA" credit card, number 4337 0021 1036 7135, then knowing such pretenses to be false, and by means thereof did wrongfully and unlawfully obtain from the Glodin Restaurant, Keflavik, Iceland, service, of a value of about $35.00 to wit: meals and alcoholic beverages; Specification 5: Did, in and around Berg, Reykjavik, Iceland, on or about 840311, with intent to defraud, falsely pretend to be the authorized user of a "VISA" credit card, number 4337 0021 1036 7135, then knowing that the pretenses were false, and by means thereof did wrongfully and unlawfully obtain from Hotel Berg, Reykjavik, Iceland, services, of a value of about $54.00, to wit: lodging.
	Findings:  to Charge I and specification 1 thereunder, guilty.  to Charge II and specification thereunder, not guilty.  To Charge III and specifications 1, 3, 4, and 5 thereunder, guilty; specification 2 under Charge III not guilty.
	Sentence:  CHL for 3 months, forfeiture of $396.00 pay per month for 3 months, reduction to E-1, Bad Conduct discharge.
	CA 840629:  Sentence approved and will be duly executed, but the execution of that portion thereof adjudging the naval service with a bad conduct discharge is suspended for six months from this date the sentence was adjudged, at which time unless, sooner vacated, the suspended portion will be remitted without further action.
	SA 840831: Only so much of the sentence as approved and suspended by the convening authority as provides for a bad conduct discharge, confinement at hard labor for 45 days, forfeiture of $396.00 pay per month for a period of 3 months, and reduction to the pay grade of E-1 is approved.

841018:	Unauthorized absence from 0600-1215, 841018 (6 hrs, 15 mins/S), USS VALDEZ (FF 1096), Newport, RI.

841019:	Unauthorized absence from 0600, 841018 to1130, 841026 (7 days, 5 hrs, 30 mins/A), USS VALDEZ (FF 1096), Newport, RI.

841022:	Retention Warning:  Advised of deficiency (numerous periods of unauthorized absence), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 

841024:	NMCCMR:  The findings of guilty and sentence, as approved on review, are affirmed.

841213	Surrendered Military ID Card and executed Appellate Leave Status.

870416:	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 870424 with a bad conduct discharge which was the sentence adjudged by a properly constituted special court-martial that was determined to be legal and proper, affirmed by appellate review authority and executed (A and B).  The Board presumed regularity in the conduct of governmental affairs (C).  After a thorough review of applicant’s service record, supporting documents, facts, and circumstances unique to this case, the Board found that the discharge was proper and equitable at the time issued (C and D).  

Issue 1.  The Board found that the Applicant’s post-service conduct was sufficiently creditable to warrant an upgrade of his characterization of service to under honorable conditions (general).  The Applicant’s career progression, strong references, educational achievements, and volunteer service demonstrated that the Applicant possessed character and drive that was not always evident during his tour of active duty.  However, the Board found that the Applicant’s post-service conduct does not sufficiently mitigate his misconduct while on active duty to warrant full relief in the form of an honorable discharge.  Therefore, partial relief is granted.

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 "afls14.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