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

ex-MSSR, USN
Docket No. ND03-00769

Applicant’s Request

The application for discharge review was received on 20030331.  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.

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.  “I feel that my discharge has and is keeping me from living my life.  To explain. Recently I was laid off looking for work is hard enough without having to explain why I received a BCD when asked if I have ever been convicted of a felony I have to answer Yes.  I think that if I was to receive a discharge upgrade future employer and colleges may see that the government recognizes that I paid my debt to society in more ways that one and maybe won’t be so apt to hold my past against me.  Upon being laid off I started thinking about changing careers from a machining background too hopefully becomes a LPN. I have looked into college and realized how expensive it is.  With an Honorable discharge I might be eligible for VA Educational Benefits.  Other than my shortcomings I feel I served I the Gulf War and in the US Navy most honorably.  I wasn’t a trouble maker, I had no attitude problems, and I always did what was asked of me and expected of me.”

Documentation

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

Copy of DD Form 214
Criminal Record Search Application
FBI identification Record
FBI identification Record Rules and Regulations
Fingerprint Chart
Character Reference Letter
Employment Reference Letter dated January 7, 2003
Character Reference Letter dated December 27, 2002
Character Reference Letter dated January 10, 2002
Character Reference Letter
Letter from Applicant
Copy of Certificate of Completion (Blue Print Reading) dated February 1, 1996
Copy of Certificate of Completion (Maintenance Welding) dated November 25, 1997
Copy of Certificate of Completion (CNC Programming Mill/Lathe) dated November 24, 1998
Copy of Certificate of Completion (American Red Cross Emergency Responder)
Copy of Welder’s Qualification Test Record
Copy of Certificate of Completion (CNC Mazatrol Lathe 1) dated December 12, 2000 
Copy of Applicant Consumer Credit Report (4 pages)
Copy of Enlisted Performance Record

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	891215 - 900128	COG
	Active:   USN 			None

Period of Service Under Review:

Date of Enlistment:  900129		Date of Discharge:  940926

Length of Service (years, months, days):

	Active:    04  03  28
	Inactive:  None

Age at Entry:  19			Years Contracted:  4 

Education Level:  12			AFQT:  62

Highest Rate:  MSSN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.50 (2)	Behavior:  3.80 (2)		OTA:  3.60

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM, SSDR, SASM (2)

Days of Unauthorized Absence:  None

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:

920818:	Special Court Martial 
	Charge I:  violation of the UCMJ, Article 123A, (60) Specifications, Making, drawing, or uttering checks without sufficient funds upon it presentation between 920406 and 920423.
	Findings:  to Charge I, and specifications 1 through 60 thereunder, guilty.
	Sentence:  Confinement for 5 months, forfeiture of $500.00 pay per month for 5 months, reduction to E-1, Bad Conduct discharge.
	CA 921005:  Sentence approved and ordered executed, except for bad conduct discharge.
	
920818:	Joined Consolidated Brig, Miramar, San Diego, CA, for confinement.

920821:	Applicant waived rights to clemency review [Extracted from NC&PB Computer system].

921221:	From confinement; to appellate leave.

930126:	NMCCMR:  The findings of guilty and sentence, as approved on review, are affirmed.  

940922:	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 19940926 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 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.  

Issue 2.  The Board has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities as requested in the issue.  Regulations limit the Board’s review to a determination on the propriety and equity of the discharge.  Relief 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 naval service.  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.  At this time the Applicant has not submitted sufficient documentation for the board to consider.

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), 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 122A, (Making, drawing, or uttering checks without sufficient funds).

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 Rm309
		Washington Navy Yard DC  20374-5023