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

 ex-AMSAR, USN 
Docket No. ND03-00581

Applicant’s Request

The application for discharge review was received on 20030221.  The Applicant requests the characterization of service received at the time of discharge be changed to general/under honorable conditions.  The Applicant requests a documentary record discharge review.  The Applicant listed the American Legion as the representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20040204.  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 stated

Issues submitted by Applicant’s counsel/representative (American Legion):

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:

Applicant’s DD Form 214
Employment verification and job character reference, dated January 16, 2003
Applicant’s resumé
Certificate from California Specialized Training Institute for completion of Hazardous materials course, dated December 15, 1998
Certificate of achievement cards, dated December 15, 1998 (2), and August 28, 1999
Qualification card
Certificate of completion, dated March 23, 1989
Plane Captain recommendation and designation, dated March 23, 1989
Letter of appreciation, dated February 6 1989
Certificate of completion, dated October 5, 1987
Certificate of completion, dated September 7, 1990
Certificate of completion, dated July 14, 1989

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	870612 - 870707	COG
	Active:   None

Period of Service Under Review:

Date of Enlistment:  870708		Date of Discharge:  900620

Length of Service (years, months, days):

	Active:    02  11  13  Does not exclude lost time
	Inactive:  None

Age at Entry:  20			Years Contracted:  4

Education Level:  12			AFQT:  41

Highest Rate:  AMSAA

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  2.80 (1)		Behavior:  3.20 (1)			OTA:  3.60

Military Decorations:  None

Unit/Campaign/Service Awards:  None

Days of Unauthorized Absence:  72 or 75

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:

880928:	NJP for violation of UCMJ, Article 86 (2 specs): Unauthorized absence from 0730, 880801 to 1100, 880904 (33 days/surrendered), (2) Unauthorized absence from 0745-0945, 880912.
	Award: Correctional custody for 30 days, reduction to AMSAR.  Custody deferred for 1 day.  No indication of appeal in the record.

880928:	Retention Warning: Advised of deficiency (Unauthorized absence.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 

890707:	NJP for violation of UCMJ, Article 86 (3 specs): (1) Unauthorized absence from 0600-1300, 890619 (2) Fail to go at the time prescribed to appointed place of duty on 1615, 890621, (3) Fail to go at time prescribed to appointed place of duty on 0730, 890703.
	Award: Forfeiture of $200 per month for 2 months, restriction for 60 days.  No indication of appeal in the record.

890717:	Applicant to unauthorized absence 0730, 980717.

890726:	Applicant from unauthorized absence 1227, 890226 (9 days/surrendered).

890727:	NJP for violation of UCMJ, Article 86: Unauthorized absence from 1730, 890714 to 1227, 890726 (12 days/surrendered), violation of UCMJ, Article 134: Break restriction on 1730, 890707.
	Award: Forfeiture of $349 per month for 2 months, restriction for 60 days.  No indication of appeal in the record.

890727:	Retention Warning:  Advised of deficiency (Unauthorized absence.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 

890826:	Applicant to confinement.

890922:	Applicant from confinement.

890922:	Special Court Martial
	Charge I: violation of the UCMJ, Article 86:
	Specification:  Unauthorized absence from 890727 to 890826 (30 days)
	Charge II: violation of the UCMJ, Article 134:
	Specification: Break restriction on 890727.
	Findings: to Charge I and II and specifications thereunder, guilty.
	Sentence: CHL for 60 days, Bad Conduct discharge.
	CA 891020: Sentence approved and ordered executed, except for bad conduct discharge.
	SA: see SSPCMO.

891002:	Applicant from confinement; to appellate leave.

900314:	NMCCMR: The findings of guilty and sentence, as approved on review, are affirmed.

900620:	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 19900620 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).  

Issue 1. Relevant and material facts 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, the action of the NDRB is restricted to upgrades based on clemency.  Clemency is an act of leniency that reduces the severity of the punishment imposed.  After a thorough review of the Applicant’s record, issues submitted, and post service accomplishments, the Board determined that clemency was not warranted.

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.  After a complete review of the entire record, including the evidence submitted by the Applicant, the Board determined that his discharge was appropriate and that his evidence of post-service conduct was found not to mitigate the conduct for which he was discharged.  Relief on this basis is denied.

The Applicant remains eligible for a personal appearance hearing, provided an application is received, at the NDRB, within 15 years from the date of discharge.  The Applicant can provide documentation to support any claims of post-service accomplishments at that time.  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 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.  

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