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

 ex-EWSR, USN
Docket No. ND02-01018

Applicant’s Request

The application for discharge review, received 020715, requested that the characterization of service on the discharge be changed to general/under honorable conditions.  The Applicant requested a personal appearance hearing in the Washington National Capital Region.  The Applicant designated the Veterans of Foreign Wars as his representative on the DD Form 293.  In the acknowledgement letter to the Applicant, he was informed that the Naval Discharge Review board (NDRB) first conducts a documentary review prior to any personal appearance hearing.

Decision

A documentary discharge review was conducted in Washington, D.C. on 030414.  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.  That my discharge was awarded without regard to my rank, years of good service, performance evaluations and narratives, as well as campaign or other service related citations, awards, and medals.

2.  That with the passage of time and my desire to again serve my country in the military service that I may be given a second chance.

Submitted by VFW:

We concur with the Applicant's contention that his discharge be upgraded, since the Applicant is a Persian Gulf War Veteran.  We ask the Board to consider SECNAVINST 5420.174C, paragraphs 9.3 (B&D).

Documentation

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

Copy of DD Form 214
Applicant's letter to the Board, dtd Oct 15, 2001
Applicant's spouse, E_ A. L_, letter to the Board, dtd Oct 29, 2001

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	860826 - 870705	COG
	Active:   USN 		870706 - 940116	HON

Period of Service Under Review:

Date of Enlistment:  940117*	Date of Discharge:  981026

Length of Service (years, months, days):

	Active:    04  09  10 (Doesn't exclude confinement time/appellate leave.)
	Inactive:  None

Age at Entry:  24			Years Contracted:  3 (4 months extension)

Education Level:  12			AFQT:  67

Highest Rate:  EW2

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  4.0 (1)	Behavior:  4.0 (1)		OTA:  4.0  (4.0 evals)
                      3.5 (2)                          3.5 (2)                          3.4  (5.0 evals)

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM, SSDR(3), Navy "E" Ribbon, NAM, GCM(2), AFEM, SWASM, Rifle Expert Ribbon, Pistol Expert Ribbon, KLM

Days of Unauthorized Absence:  None

*940117 Reenlistment contract not contained in the 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:

940117:	Reenlisted onboard USS FORD (FFG-54) for a term of 3 years.

970114:	Pre-trial confinement.

970117:	Extended for period of 4 months.

970501:	Special Court Martial 
	Charge I:  violation of the UCMJ, Article 121, (6) Specifications.
	Specification 1:  On or about between the month of Jun 96 and Aug 96, steal doughnuts, of some value, the property of the U.S. Government.
	Specification 2:  On or about between the month of Dec 96 and Jan 97, steal seven bottles of liquor beer, beef jerky, and pretzels, of a value of about $117.19, the property of the U.S. Government.
	Specification 3:  On or about the month of Dec 1996, steal 17 compact discs and a GSP5 Digitech guitar processor/preamp with patch cord, of a value of about $544.00, the proper of T_ J_ (contractor).
	Specification 4: On or about the month of December 1996, steal a Motorola battery for a cell phone, of a value of about $35.00, the property of the U.S. Government.
	Specification 5: On or about the month of December 1996, steal a Screen Saver computer disk, of a value of about $38.00, the property of the U.S. Government.
	Specification 6:  On diverse occasions, on or about 12 January 1997, steal a "Learn to speak French" computer disk, a "Jimmy Buffet" compact disk collection, a "Howlin Wolf" tape, and some blank cassettes, of a value of about $163.40, the property of the U.S. Government.  
	Charge II:  violation of the UCMJ, Article 130, (7) Specification.
	Specification 1:  On divers occasions, on or about the month of Dec 96, unlawfully enter Squigglies, a club, the property of the U.S. Government, with intent to commit a criminal offense, to wit: larceny, therein.
	Specification 2:  On or about the month of Dec 96, unlawfully enter 2376 Forrestal Drive, a room the property of the U.S. Government, with intent to commit a criminal offense, to wit: larceny, therein.
	Specification 3:  On or about the month of Dec 96, unlawfully enter the Environmental trailer, an office, property of the U.S. Government, with intent to commit a criminal offense, to wit: larceny, therein.
	Specification 4:  On divers occasions, on or about the month of Dec 96, unlawfully enter Tailgates, a club, property of the U.S. Government, with intent to commit a criminal offense, to wit: larceny, therein.
	Specification 5:  On divers occasions, on or about the month of Dec 96, unlawfully enter Bldg. 750, a warehouse, property of the U.S. Government, with intent to commit a criminal offense, to wit: larceny, therein.
	Specification 6:  On or about 28 Dec 96, unlawfully enter the Officer's Club, property of the U.S. Government, with intent to commit a criminal offense, to wit: larceny, therein.
	Specification 7:  On or about 12 Jan 97, unlawfully enter the Craf Tech bldg., a store, property of the U.S. Government, with intent to commit a criminal offense, to wit: larceny, therein.
	Specification 8:  On or about 12 Jan 97, unlawfully enter the Navy Exchange, a store, the property of the U.S. Government Navy Exchange, with intent to commit a criminal offense, to wit: larceny, therein.
	Findings:  to Charge I and specifications 2, 3, 4, 5 and 6 thereunder - guilty; specification 1 - withdrawn.
	To Charge II and specifications 1, 2, 4, 6, 8 and 8 thereunder - guilty; specifications 3 and 5 - withdrawn.
	Sentence:  Confinement for period of 107 days, pay a fine of $500.00, reduction to E-1, and Bad Conduct discharge.
	CA 971125:  Sentence approved and ordered executed, except for bad conduct discharge.

970515:	To appellate leave. [EXTRACTED FROM DD FORM 214.]

980724:	NMCCCA:  The findings of guilty and sentence, as approved on review, 
	are affirmed.

981026:	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 981026 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:  In response to the Applicant's issue, relevant and material details stated in a court-martial specification are presumed by the NDRB to be established facts.  With respect to a discharge adjudged by a court-martial case tried under the Uniform Code of Military Justice, the action of the NDRB is restricted to upgrades based upon clemency only (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 service records that the Board reviewed showed no mitigating or extenuating factors sufficient to offset the seriousness of the offenses for which the discharge was awarded.  Relief is therefore denied.

Issue 2:  There is no law or regulation that provides for an unfavorable discharge to be upgraded based solely on the passage of time or good conduct in the civilian life subsequent to leaving the service.  However, the NDRB is authorized to consider post-service factors in the recharacterization of a discharge.  Outstanding post-service conduct, 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 may be considered.  Verifiable proof of 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 credible evidence of a substance-free lifestyle are examples of verifiable documents that may be provided to receive consideration for relief based on post-service conduct.  At this time, the Applicant has not provided sufficient documentation for the Board to consider an upgrade.  Relief denied.

The Board has no authority to upgrade a discharge for the sole purpose of enhancing reenlistment opportunities as requested in the issue.  Regulations limit the Board’s review to a determination on the propriety and equity of the discharge.  In the Applicant’s case, the Board could not discern any impropriety or inequity and therefore considered the discharge proper and equitable.   Relief denied.  

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.  Naval Military Personnel Manual, (NAVPERS 15560C), Change 14, effective 
03 Oct 96 until 14 Dec 98, 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, paragraph 2.24, COURT-MARTIAL SPECIFICATION, PRESUMPTION CONCERNING.

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 DC  20374-5023