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

 
 ex-OSSR, USN
Docket No. ND03-00730

Applicant’s Request

The application for discharge review was received on 20030320.  The Applicant requests the characterization of service received at the time of discharge be changed to general/under honorable conditions.  The Applicant requests a personal appearance hearing discharge review before the Board in the Washington National Capital Region.  The Applicant listed Civilian Counsel as the representative on the DD Form 293.  In the acknowledgement letter, the Applicant was informed that the Naval Discharge Review Board (NDRB) first conducts a documentary review prior to any personal appearance hearing.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20040224.  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

Issues submitted by Applicant’s counsel/representative (CIVILIAN COUNSEL):

“1. The petitioner submits that he has been unjustly subjected to the imposition of a Bad Conduct Discharge by the United States Navy and respectfully requests that this Honorable board set aside said Bad Conduct Discharge and upgrade his discharge characterization to General, under Honorable Conditions.” (See Relevant Facts) 

Documentation

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

Applicant’s Petition to NDRB (16 pages)
Enclosure A: Copy of Charge Sheets (2 pages)
Enclosure B: Copy of Investigating Officer’s Report (8 pages)
Enclosure C: Copy of Charge Sheets (3 pages)
Enclosure D: Request for Alternative Disposition in Lieu of Court Martial (2 pages)
Enclosure E: Response to Request for Alternative Disposition in Lieu of Court Martial (1 pages)
Enclosure F: Copy of Memorandum of Pretrial Agreement Part 1 and 2 (9 pages)
Enclosure G: Copy of Record of Trial (133 pages)
Enclosure H: Copy of Report of Results of Trial ( 2 pages)
Enclosure I: Copy of Comment on SJA Report and Request for Clemency (4 pages)
Enclosure J: Copy of Prisoner’s Acknowledgement of Sex Offenders Registration Requirements.
Enclosure K: Copy of Special Court Martial Order NO 13-00 (3 pages)
Enclosure L: Copy of NMCCMA Decision (2 pages)
Enclosure M: Copy of Special Court Martial Supplemental Order NO 01-1296 (1 page)
Enclosure N: Copy of Commanding Punitive Discharge Letter, Copies of DD Form 214 (3)
Enclosure O: Letter from Applicant, Letter from Applicant’s Mother (2 pages), Character Reference Letter from D_ A. M__, USAF dated June 6, 2002 

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	970219 - 970909	COG
	Active:   USN 			None

Period of Service Under Review:

Date of Enlistment:  970910		Date of Discharge:  011022

Length of Service (years, months, days):

	Active:    01  11  19
	Inactive:  None

Age at Entry:  19			Years Contracted:  4 (24 months extension)

Education Level:  12			AFQT:  62

Highest Rate:  OSSA

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.00 (2)	Behavior:  3.00 (2)		OTA:  3.07

Military Decorations:  None

Unit/Campaign/Service Awards:  AFEM, AFSM, SSDR, NM, Rifle Marksmanship Medal, Pistol Marksmanship Medal [Extracted from Record of Trial]

Days of Unauthorized Absence:  None

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:

990824:	Special Court Martial
	Charge I:  violation of the UCMJ, Article 134: Disorderly conduct on or about 981212, by engaging in a game of “truth or dare” with the Gymstrata Hurricanes cheerleading team by placing his face between the breast of a female under the age of 16 years.  Additional Charge: violation of the UCMJ, Article 134: Wrongfully commit an indecent act with a female under 16 years of age, and on or about 981212 by placing his face between and touching exposed breast.   
	Findings:  to Charge I and specification thereunder, guilty.  Additional charge and specification 1 thereunder, guilty.
	Sentence:  Confinement for 100 days, forfeiture of $500.00 per month for (5) months, reduction to E-1, Bad Conduct discharge.
	CA 000523:  Only so much of the sentence as provides for confinement for 45 days, reduction in rate to pay grade E-1, forfeiture of $500.00 per month for three months, and the bad conduct discharge is approved, and except for bad conduct discharge, will be executed.
	SA:  see SSPCMO.

990824:	Joined Naval Brig Norfolk, for confinement.

990930:	Released from confinement and restored to full duty.

010717:	NMCCCA:  The findings of guilty and sentence, as approved on review, 
	are affirmed. 

011022:	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 discharged in absentia on 20011022 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:  In response to the Applicant's issue, relevant and material details 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 tried under the Uniform Code of Military Justice, the action of the NDRB is restricted to upgrades 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, 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 he 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 134, disorderly conduct, and wrongfully commit an indecent act with a female under 16 years of age.

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