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

 ex-MMFR, USN
Docket No. ND03-00189

Applicant’s Request

The application for discharge review, received 20021114, 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.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20031003.  After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, no impropriety or inequity in the characterization of the Applicant’s service was discovered by the NDRB.  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.  When I joined the Navy in 1987, I intended to fulfill my 4 year obligation learning as much as I could.  I was doing fairly well after a 4 year Med tour, until I happened to meet up with my best friend from home in Norfolk, VA.  We started drinking and doing the kind of things we did back home when we were young.  This, of course, sidetracked me from my duties.  I am now a married man with 3 children.  I am sober and would like my discharge changed so I can take advantage of the opportunities I earned while serving my country.  I am sorry for my behavior and would hate for my mistakes of my youth to make it impossible to enjoy the benefits I could have as a veteran of the Navy. 

Documentation

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

Copies of DD Form 214 (2)

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	870320 - 870422	COG
	Active:   USN			None

Period of Service Under Review:

Date of Enlistment:  870423		Date of Discharge:  891219

Length of Service (years, months, days):

	Active:    02  05  09
	Inactive:  None

Age at Entry:  19			Years Contracted:  4 

Education Level:  12			AFQT:  46

Highest Rate:  MMFA

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:  52

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:

880725:	Report of Declaration of Deserter (NAVPERS 1600-3).  Applicant declared a deserter on 880718 having been an unauthorized absentee since 0500, 880618 from USS CLAUDE V. RICKETTS (DDG-5).

881021:	Special Court Martial [trial date 881021]
	Charge I:  violation of the UCMJ, Article 86: Unauthorized absence from unit 880618 until 880809, [52 days/S.].  Charge II: violation of the UCMJ, Article 95: Resist being lawfully apprehended by NC1 S. S___, USN, on 880909.  Charge III: violation of the UCMJ, Article 112a: Wrongfully use marijuana in the continental united states between 880801 and 880810.  Charge IV: violation of the UCMJ, Article 134: Drunk and disorderly on board USS CLAUDE V. RICKETTS (DDG-5) on 880809.
	Findings:  to Charge I and specifications 1 and 2 thereunder, guilty.
	Sentence:  Confinement for 30 days, forfeiture of $440.00 for 1 month, reduction to E-1, Bad Conduct discharge.
	CA 890127:  Sentence approved and except for that part of the sentence extending to a bad conduct discharge will be executed.
	
881021:	Joined Naval Brig, Naval Station, Norfolk, VA, for confinement.

881104:	Report of Return of Deserter.  Applicant surrendered to military authorities] on 880809 (2300) at USS CLAUDE V. RICKETTS (DDG-5).  Returned to military control 880809 (2300).  Retained onboard for disciplinary action.

881114:	Released from confinement and restored to full duty.

881128:	Applicant waived right to clemency review [Extracted from NC&PB computer system].

890307:	NMCCMR:  The findings of guilty and sentence, as approved on review, are affirmed.

891219:	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 19891219 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:  In response to the Applicant's issue, an upgrade of a discharge adjudged by a court-martial case tried under the Uniform Code of Military Justice can only be 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.

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, a positive employment record, a drug-free lifestyle, and certification of community service and non-involvement with civil authorities are examples of verifiable proof that can be submitted.   At this time, the Applicant has not provided any verifiable documentation of good character and conduct to mitigate his misconduct while on active duty.  Relief is not warranted.

The Applicant is reminded that she remains eligible for a personal appearance hearing, provided an application is received at the NDRB within 15 years from the date of her 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.  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, Article 95, resist apprehension, Article 112a, wrongful use of marijuana, and Article 135, drunk and disorderly.

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