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

 
 ex-CMCR, USN
Docket No. ND03-00759

Applicant’s Request

The application for discharge review was received on 20030328.  The Applicant requests the characterization of service received at the time of discharge be changed to honorable.  The Applicant requests a documentary record discharge review.  The Applicant did not list any representative on the DD Form 293.  Subsequent to the application for review, the Applicant obtained representation by the Veterans of Foreign Wars. 

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/COURT MARTIAL CONVICTION, authority: NAVMILPERSMAN, Article 3640420.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

"1.  My discharged was inequitable because it was based on many different incidents in a few months with no other adverse action."

." 2.  I was never issued documents of my conviction or told what I was charged of the offenses."

"3.  Never had adequate representation or inform me before the trial what I was been done or what I need to do to prepare before the trial." 

Additional issues submitted by Applicant’s counsel/representative (VETERANS OF FOREIGN WARS):

4.  “We concur with the Applicant’s contention that his discharge be upgraded.  We refer this case to the Board for their careful and compassionate consideration and request the Applicant’s discharge be reviewed for upgrade to General Discharge." 

Documentation

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

Copy of DD Form 214
Resume (2 pages)

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	870731 - 880105	COG
	Active:   USN 			None

Period of Service Under Review:

Date of Enlistment:  880106		Date of Discharge:  940411

Length of Service (years, months, days):

	Active:    05  07  02
	Inactive:  None

Age at Entry:  20			Years Contracted:  4 (16 months extension)

Education Level:  12			AFQT:  25

Highest Rate:  CMCN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.35 (4)	Behavior:  3.40 (4)		OTA:  3.35

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM, M16 A1 Rifle Expert, AFEM, OSR, SASM, LOA

Days of Unauthorized Absence:  164

Character, Narrative Reason, and Authority of Discharge (at time of issuance):

BAD CONDUCT/COURT MARTIAL CONVICTION, authority: NAVMILPERSMAN, Article 3640420.

Chronological Listing of Significant Service Events:

901116:	NJP for violation of UCMJ, Article 86: Unauthorized absence.
	Award:  Forfeiture of $150.00 pay per month for 1 month, restriction and extra duty for 30 days, reduction to E-2 (suspended for 6 months).  No indication of appeal in the record.

910829:	NJP for violation of UCMJ, Article 92: Failure to obey a lawful order, violation of UCMJ Article 134: Drunk and disorderly.
	Award:  Forfeiture of $250.00 pay per month for 1 month, restriction and extra duty for 30 days, reduction to E-2 (suspended for 6 months).  No indication of appeal in the record.

920213:	NJP for violation of UCMJ, Article 86: UA (3 Specs); Spec 1: UA from 0630, 920103 until 0640, 920106 (3 days); Spec 2: UA 0630, 920113 until 0710, 920113; Spec 3: UA 0630, 920131 until 1100, 920131, violation of UCMJ Article 92: Failure to obey a lawful order on 920203.
	Award:  Forfeiture of $440.00 pay per month for 2 months, restriction and extra duty for 30 days, reduction to E-2.  No indication of appeal in the record.

920227:	Civil Conviction:  [Municipal Court of Gulfport, MS] for DUI, Speeding, Improper lane use.
Sentence:  Fined $994.00 and ordered to attend MASEP.

920403:	Civil Conviction:  [Municipal Court of Philadelphia, PA] for Carrying a concealed weapon.
Sentence:  Fined $300.00 and ordered to spend 6 days in jail.

920529:	Special Court Martial
	Charge I:  violation of the UCMJ, Article 86, 2 Specifications;
	Specification 1:  Unauthorized absence from unit 920316 – 920323, [7 days/S]; Specification 2: Unauthorized absence from 920330 to 920403 [4days/S].  Charge II: violation of the UCMJ, Article 91: Disobeying a lawful order from a Superior Petty Officer to remove an earring form his ear on 920320.  Charge III: violation of the UCMJ, Article 92: Having knowledge of a lawful order issued on 910719 disobeying the same by wrongfully wearing an earring in his ear on 920320.
	Findings:  to Charge I and specifications 1 and 2 thereunder, guilty.  To Charge II and specification thereunder, guilty.  To Charge III and specification 1 thereunder, withdrawn.  Charge IV and specifications thereunder, withdrawn by the government prior to receiving pleas. 
	Sentence:  Confinement for 40 days, forfeiture of $300.00 pay per month for 2 months, reduction to E-1.
	CA 920812:  Sentence approved and ordered executed.

920627:	Released from confinement and returned to full duty.

920918:	Report of Declaration of Deserter (NAVPERS 1600-3).  Applicant declared a deserter on 920913 having been an unauthorized absentee since 2201, 920814 from NAS Pensacola, FL.

930222:	Special Court Martial 
	Charge I:  violation of the UCMJ, Article 86:  In that SNM on or about 920814 absent himself from NAS Pensacola until apprehended on or about 930111, [150 days/A.].
	Findings:  to Charge I and specification thereunder, guilty.
	Sentence:  Confinement for 60 days, forfeiture of $540.00 pay per month for 2 months, Bad Conduct discharge.
	CA 930401:  Sentence approved and ordered executed, except for bad conduct discharge.
	SA:  see SSPCMO.

930222:	Applicant waived rights to clemency review. 
[Extracted from NC&PB computer system]
 
930301:	Released from confinement and returned to full duty.

931214:	NMCCMR:  The findings of guilty and sentence, as approved on review, are affirmed.  

940411:	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 19940411 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).

Issues 1, 2, 3 and 4:  The action of the NDRB is restricted to upgrades based upon clemency when a discharge is adjudged by a court-martial case tried under the Uniform Code of Military Justice 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, an alcohol-free lifestyle, and certification of community service and non-involvement with civil authorities are examples of verifiable proof that can be submitted.   

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 additional 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), Change 5, effective 
05 Mar 93 until 02 Oct 96, 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 Rm309
		Washington Navy Yard DC  20374-5023