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

 ex-AR, USN
Docket No. ND02-01251

Applicant’s Request

The application for discharge review, received 020904, 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 designated the American Legion as the representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 030722.  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), paragraphs 2.24 and 9.3, this former member requests the Board’s clemency relief with up-grade of his characterization of service 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:

Copy of DD Form 214
Character Reference lt. from P_  A_  M_, dtd Aug 19, 2002
Applicant’s Authorization for Rep’s Access to Record (VA Form 21-22)
Certificate of Completion, Naval Aviation Schools Command, Naval Air crewman
 Candidate School, dtd Mar 24, 1995
Certificate of Completion, Naval Aviation Schools Command, Rescue Swimmer 
School, dtd Jun 16, 1995

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	940930 - 941018	COG
	Active:   None

Period of Service Under Review:

Date of Enlistment:  941019		Date of Discharge:  980511

Length of Service (years, months, days):

	Active:    03  06  23 (Doesn’t exclude lost time, confinement, & appellate leave.)
	Inactive:  None

Age at Entry:  18			Years Contracted:  4 

Education Level:  10 (GED)		AFQT:  58

Highest Rate:  AA

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  NMF*		Behavior:  NMF		OTA:  NMF

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM, Pistol Marksman Ribbon

Days of Unauthorized Absence:  52

*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:

950307:	NJP for violation of UCMJ, Article 86:  Absence from unit, organization, or place of duty (1 spec); violation of UCMJ, Article 92:  Violation or failure to obey other lawful written order (3 specs).
	Award:  Forfeiture of $497.00 per month for 1 month (suspended for 6 months), restriction and extra duty for 15 days.  No indication of appeal in the record.

951025:	NJP for violation of UCMJ, Article 86:  Unauthorized absence from appointed place of duty; violation of UCMJ, Article 92 (2 specs):  Failure to obey a lawful order/regulation; violation of UCMJ, Article 108:  Destruction or wrongful disposition of U.S. Government property.
	Award:  Forfeiture of $300.00 per month for 2 months, reduction to pay grade E-1 and restriction and extra duty for 30 days.  No indication of appeal in the record.

951218:	Report of Declaration of Deserter (NAVPERS 1600-3).  Applicant declared a deserter on 95DEC18 having been an unauthorized absentee since 2100, 95DEC15 from NATTC Millington, TN.

960210:	Report of Return of Deserter (NAVPERS 1600-2).  Applicant apprehended by civil authorities on 96FEB07 (1340) at San Antonio, TX. Returned to military control 960207 (1340) by Navy Absentee Collection Information Center, Great Lakes, IL.  Delivered to NATTC Millington, TN, for disciplinary action.

960208:	Place in pre-trial confinement.

960307:	Special Court-Martial. 
	Charge I:  violation of the UCMJ, Article 86:
	Specification:  Unauthorized absence 951215 – 960207, [52 days/A].
	Charge II: violation of the UCMJ, Article 116:  Breach of peace.
	Charge III: violation of the UCMJ, Article 128:  Assault.
	Charge IV: violation of the UCMJ, Article 134:  Break restriction.
	Findings:  to Charge I, Charge II and Charge IV and specification thereunder - guilty.  
To Charge III and specification thereunder – not guilty.
	Sentence:  Confinement for 45 days, bad conduct discharge.
	CA 961025:  Sentence approved and ordered executed, except for bad conduct discharge.  Accused shall be credited with 34 days of confinement against the sentence to confinement adjudged.

960307:	Joined Naval Brig, Naval Support Activity, Memphis, TN, for confinement.

960309:	From confinement.

960316:	To appellate leave.

980213:	NMCCCA:  The findings of guilty and sentence, as approved on review, 
	are affirmed.  

980511:	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 980511 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 the records, supporting documents, facts, and circumstances unique to this case, the Board found that the discharge was proper and equitable (D and E).

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.  The Applicant’s discharge characterization accurately reflects his service to his country.  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 of a substance free lifestyle, are examples of verifiable documentation that should have been provided to receive consideration for relief, based on post-service conduct.  The Applicant’s evidence of post-service conduct was found not to mitigate the offense for which he was discharged.  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.  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.  The Manual for courts-martial authorizes the award of a punitive discharge if adjudged as part of the sentence upon conviction by a special or general court martial for violation of the UCMJ, Article 86- unauthorized absence for more than 30 days; Article 116, breach of peace; and Article 134, break restriction.

C.  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.

D.  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.

E.  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