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

 ex-AR, USN
Docket No. ND03-00550 

Applicant’s Request

The application for discharge review was received on 20030214.  The Applicant requests the characterization of service received at the time of discharge be changed entry level separation or uncharacterized.  The Applicant requests 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 20040128.  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 5815-010 (formerly 3640420).

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

“1.  To whom it may concern:

My name is W__ H__Sr. and my social security number is XXX-XX-XXXX.  I am writing this letter to explain why I earned a bad conduct discharge from prior enlistment with the United States Navy.

On 17 November 1993 is when I made one of the worst decision of my life.  This was the day I took action upon myself to absent myself from my unit at Naval Air Technical Training Center located at Naval Air Station, Millington, Tennessee and remain absent until apprehended on 21 September 1997.  The reason for making such an immature decision was because I put myself in a position I could not figure out how to handle at that young stage in my life.  I learned that my spouse at the time was involved in an adulterous relationship and I also learned that my father I grew up to know was not my biological father.  These two events had a big affect on me making an immature decision that I would regret.  I know I could of taken other avenues to resolve these issues, but being young, immature and inexperienced in life, also had an affect in me making this decision.

When I went U.A. from my unit, I returned home to try and resolve these issues.  While U.A. I obtained a job as a pharmacist technician with Valley Baptist Medical Center.  As time progressed, I divorced and started to move on with my life.  At several points while I was U.A., I did think of turning myself in, but I was too afraid of the consequences I would have to face.  I then remarried on 07 September 1996 and now have two children.

I was apprehended by local authorities on 21 September 1997 and returned to T.P.U. in San Diego, California.  I was adjudged 31 October 1997 to sixty days confinement and earned a bad conduct discharge.  I blame no one but myself for my actions in making this immature decision.

Through all these events in my life, I have experienced and learned a great deal of responsibility, as well as being responsible in my workplace.

I regret these bad decisions I have made in my life.  Now being a father and husband, I know I have to set good examples, especially for my children.  I need to show them how to be responsible so they will not make any immature decisions such as I did.

I am now a mature and responsible adult and I am respectfully asking for a second chance to serve my country in the United States Navy.  I thank you for your time and God bless you.”

Documentation

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

Copies of DD Form 214 (2)
Letter from Applicant dated July 23, 2002 (2 pages)
Copy of Pharmacy Technician Certification dated July 31, 2002
3 Requests for Reference (6 pages)
Reference Letter from H__ G___
Reference Letter from G.A. L_, Lt. U.S. Airforce
Letter of Recommendation from E_ C_
Letter from Applicant 
Copy of Record of Trial (36 pages)

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	921016 - 930518	COG
	Active:   USN 			None

Period of Service Under Review:

Date of Enlistment:  930519		Date of Discharge:  981215

Length of Service (years, months, days):

	Active:    00  06  16
	Inactive:  None

Age at Entry:  19			Years Contracted:  4 

Education Level:  12			AFQT:  49

Highest Rate:  AR

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  NMF*	Behavior:  NMF		OTA:  NMF

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM

Days of Unauthorized Absence:  1399

*No Marks Found
Character, Narrative Reason, and Authority of Discharge (at time of issuance):

BAD CONDUCT/Convicted by special court martial, authority: NAVMILPERSMAN, Article 5815-010 (formerly 3640420).

Chronological Listing of Significant Service Events:

931217:	Report of Declaration of Deserter (NAVPERS 1600-3).  Applicant declared a deserter on 931217 having been an unauthorized absentee since 0630, 931117 from NATTC MILLINGTON, TN.

970921:	Applicant apprehended by the Harlingen Police Department, Harlingen, TX and returned to military control 0351, 970921 by the navy absentee collection and information center, Great Lakes, IL.  Delivered to Transient Personnel Unit, Naval Station, San Diego, CA for disciplinary action and further disposition.

970921:	Pre-trial restraint from 970921 to 971031.

971030:	Pre-trial agreement submitted and approved.
 
971031:	Special Court Martial 
	Charge I:  violation of the UCMJ, Article 86, Did on or about 931117, without authority, absent himself from his unit, to wit: Naval Air Technical Training Center, located at Naval Air Station, Millington, Tennessee, and did remain so absent until apprehended on or about 970921.
	Findings:  to Charge I and specification 1 thereunder, guilty.
	Sentence:  Confinement for 90 days, Bad Conduct discharge.
	CA 980129:  Sentence approved and except for the part of the sentence extending to a bad conduct discharge, will be executed.  However, any confinement in excess of 60 days will be suspended for a period of one year from the date of the sentence at which time, unless sooner vacated, will be remitted without further action.

980806:	NMCCCA:  The findings of guilty and sentence, as approved on review, 
	are affirmed.

981207:	COMA:  Request for appeal denied.

981215:	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 19981215 with a bad conduct discharge which was the sentence adjudged by a properly convened special court-martial that sentence was subsequently approved by both the convening and appellate review authorities (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, the action of the NDRB is restricted to upgrades based upon clemency only (C, Part IV) when a discharge is adjudged by a court-martial case tried under the Uniform Code of Military Justice.  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.

The following is provided for the edification of the Applicant.  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, and certification of community service and non-involvement with civil authorities are examples of verifiable proof that can be submitted

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 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 15560C), Change 22, effective 15 Dec 98 to 21 Aug 2002, Article 5815-010 (formerly 3640420), Executing a Dishonorable or Bad Conduct Discharge.

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.

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