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

 ex-FR, USN 
Docket No. ND03-00592

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 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 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 R_ J. S_, I was discharged from the Navy in 1992 with a bad conduct discharge I am writing to request an upgrade to general under honorable conditions, since being discharged I’ve never been in jail or even a speeding ticket. @ the time of my discharge I was going through a divorce, and not being able to see my daughter who now is 14 years old.  I know going UA was not the right thing to and I realize I should have taken different measures.  I enjoyed serving my country and realize what I did wasn’t right.  But I’m older now and a lot wiser.  Please take my request into consideration.  Thank you for time with matter and have a great day.”

Documentation

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

Employment Reference Letter 
Copies from Service Record (63 pages) 

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	890912 - 890920	COG
	Active:   USN 			None

Period of Service Under Review:

Date of Enlistment:  890921		Date of Discharge:  920814

Length of Service (years, months, days):

	Active:    02  03  24
	Inactive:  None

Age at Entry:  23			Years Contracted:  4 

Education Level:  12			AFQT:  32

Highest Rate:  FR

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  NMF*		Behavior:  NMF		OTA:  NMF

Military Decorations:  None

Unit/Campaign/Service Awards:  None

Days of Unauthorized Absence:  163

*No Marks Found

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:

900509:	Report of Declaration of Deserter (NAVPERS 1600-3).  Applicant declared a deserter on 900509 having been an unauthorized absentee since 0630, 900409 from USS KITTY HAWK located at Naval Shipyard, Philadelphia, PA.

900529:	Report of Return of Deserter.  Applicant apprehended by civil authorities on 900527 (0300) at Myrtle Beach, SC.  Returned to military control 900527 (0500).  Orig retained custody pending transfer to NAVABSCOLLU PHILDELPHIA, PA.

900620:	Special Court Martial
	Charge I:  violation of the UCMJ, Article 86: Unauthorized absence 900409 – 900527, [48 days/A.].
	Findings:  to Charge I and specification thereunder, guilty.
	Sentence:  Confinement for 50 days, forfeiture of $150.00 pay per month for 6 months.
	CA 900720:  Sentence approved and ordered executed.

900813:	Report of Declaration of Deserter (NAVPERS 1600-3).  Applicant declared a deserter on 900814 having been an unauthorized absentee since 0700, 900713 from USS KITTY HAWK located at Naval Shipyard, Philadelphia, PA.

901105:	To pre-trial confinement.

901106:	Report of Return of Deserter.  Applicant apprehended by civil authorities on 901105 (0400) at Tampa, FL.  Returned to military control 901105 (0425).  Orig retained custody pending transfer to NACU PHILDELPHIA, PA.

901212:	Special Court Martial]
	Charge I:  violation of the UCMJ, Article 85: Desertion from 900713 – 901105, [115 days/A.].
	Findings:  to Charge I and specification thereunder, guilty of lesser included offense UCMJ, Article 86.
	Sentence:  Confinement for 100 days, forfeiture of $150.00 pay per month for 3 months, and a BCD.
	CA 910219:  Sentence approved and, except for that part of the sentence extending to the BCD, will be executed.

910108:	Applicant waived rights to clemency review [Extracted from NC&PB computer system].

910127:	From confinement.

910731:	NMCCMR:  The findings of guilty and sentence, as approved on review, are affirmed.

911025:	To appellate leave.

920814:	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 19920814 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, 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.  Relief denied.

The following is provided for the edification of the Applicant.  The NDRB is authorized, however, to consider post-service factors in the recharacterization of a discharge to the extent such matters provide a basis for a more thorough understanding of the applicant’s performance and conduct during the period of service under review.  Examples of documentation that should be provided to the Board include proof of educational pursuits, verifiable employment records, documentation of community service, and certification of non-involvement with civil authorities.  

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.  Naval Military Personnel Manual, (NAVPERS 15560C), effective 15 Aug 91 until 04 Mar 93, 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.  

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