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

ex-SWSR, USN 
Docket No. ND03-01264

Applicant’s Request

The application for discharge review was received on 20030722.  The Applicant requests the characterization of service received at the time of discharge be changed to honorable or general/under honorable conditions.  The Applicant requests a personal appearance hearing before the board in the Washington National Capital Region and a documentary record review.  The Applicant listed the American Legion 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 20040514.  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.  “In view of the events taking place during my service, aboard the USS Mt. Vernon LSD-39.  I would appreciate your consideration of my discharge status.

Nature of separation to harsh for offense commited.

My overall service was not given due consideration.

I was not aware that I could contest the nature of my separation”

Additional issues submitted by Applicant’s representative (American Legion):

2.  “Equity Issue:  Based on our review of the evidentiary record and in accordance with 10 USC 874 (b) (UCMJ, Article 74) and SECNAVINST 5420.174C, enclosure (1), paragraphs 2.24 and 9.3, we request on behalf of this former member the Board’s clemency relief with up-grade of his characterization of service on the basis of his post-service conduct.
_______________________________________________________________________

In accordance with 32 C.F.R., section 724.166, and SECNAVINST 5420.174C, enclosure (1), paragraph 1.16, The American Legion submits to the Naval Discharge Review Board (NDRB or Board) the following statement in support of this Applicant’s petition.

Review of the service record reflects that this Applicant had 5 years of honorable service with above average overall performance and conduct markings of 3.8.  He was convicted by SPCM on 900510 for VUCMJ, Arts. 86, 87. On 901024, the convening authority approved the findings and sentence.  On 910412, the USNMCMR affirmed the SPCM decision and he was separated with a Bad Conduct discharge due to conviction by special court martial as authorized by NAVMILPERSMAN, Art. 3640420.

Essentially, as noted on DD Form 293, this Applicant is requesting that his discharge be upgraded because the character of service is to harsh in light of his overall service record.  He has not submitted any additional documentation beyond copies of his service record for the Board’s consideration.

The American Legion’s express purpose in providing this statement and any other submittals or evidence filed is to assist and support this former member in resolving any improprieties or inequities in the character and basis for discharge.  Moreover, we rest assured that the NDRB’s final decision will reflect sound equitable principles consistent in law, regulation, policy and discretion as promulgated by title 10 U.S.C., section 1553, and set forth in 32 C.F.R., part 724, and SECNAVINST 5420.174C, enclosure (1).

This case is now respectfully submitted for deliberation and disposition.”

Documentation

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

Applicant’s DD Form 214
Fifteen pages from Applicant’s service record

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	831216 - 840923	COG
	Active:   None

Period of Service Under Review:

Date of Enlistment:  840924		Date of Discharge:  911010

Length of Service (years, months, days):

	Active:    07  00  17	Does not exclude lost time
	Inactive:  None

Age at Entry:  17			Years Contracted:  4 (24 months extension)

Education Level:  12			AFQT:  82

Highest Rate:  EW2

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.90 (4)	Behavior:  3.95 (4)		OTA:  3.90

Military Decorations:  None

Unit/Campaign/Service Awards:  AFEM, GCM, SSDR, CGSOR

Days of Unauthorized Absence:  196

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:

880924:	Applicant enlistment extended 24 months.

891006:	Applicant declared a deserter on 891006 having been an unauthorized absentee since 0600, 890906 from USS MOUNT VERNON (LSD 39).

900322:	Applicant apprehended by civil authorities on 2330, 900322 by San Diego Sheriff’s Department.  Applicant returned to military control 2150, 900322.  Applicant delivered to parent command on 900326.

900326:	Applicant found fit for 24 hour confinement.

900510:	Special Court Martial
	Charge I: violation of the UCMJ, Article 86:
	Specification:  Unauthorized absence 890906 to 900322 (196 days/apprehended).
	Charge II: violation of the UCMJ, Article 87:
	Specification: Missed ship’s movement through neglect on 890909.
	Findings: to Charge I and II specifications thereunder, guilty.
	Sentence:  Confinement for 50 days, reduction to SWSR, Bad Conduct discharge.
	CA 901024: Sentence approved and ordered executed, except for bad conduct discharge.
	SA:  see SSPCMO.

900510:	Applicant to appellate leave.

910412:	NMCCMR:  The findings of guilty and sentence, as approved on review, are affirmed.

911010:	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 19911010 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).

Issues 1-2:  In response to the Applicant's issues, 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 denied.

The following is provided for the edification of the Applicant.  There is no law or regulation that provides for an unfavorable discharge to be upgraded based solely on the passage of time or good conduct in the civilian life subsequent to leaving the service.  However, the NDRB is authorized to consider post-service factors in the re-characterization of a discharge.  Outstanding post-service conduct, 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 may be considered.  Verifiable proof of 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, an employment record, documentation of community service and certification of non-involvement with civil authorities, are examples of verifiable documents that may be provided to receive consideration for relief based on post-service conduct.  At this time, the Applicant has not provided sufficient documentation for the Board to consider an upgrade.

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 his discharge.  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.  

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