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

   ex-SR, USN
Docket No. ND04-00124

Applicant’s Request

The application for discharge review was received on 20031022.  The Applicant requests the characterization of service received at the time of discharge be changed to honorable.  The Applicant requests a personal appearance hearing discharge review before the Board in the Washington National Capital Region.  The Applicant did not list any representative on the DD Form 293.  Subsequent to the application, Applicant obtained representation from the American Legion.

Decision

A personal appearance hearing discharge review was conducted in Washington, D.C. on 20040928.  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.  “The discharge was unfair because I was very immature at the time and had no idea of the reprucussions of having such a negative discharge on my record.  Although I accept responsibility for my actions, the fact remains that I am a completely different person now and know how important it is to follow rules.”

2.  “I am now a father of two sons and would like to be able to some day tell them honestly that I received and Honorable discharge from the U.S. Navy, Although this is no excuse for my actions while enlisted, it is how I would like to see this situation end up being.” 

ISSUES RENUMBERED FOR CONTINUITY PURPOSE.
 
“To Whom It May Concern:

This letter is to hopefully serve as an encompassment of the way I feel, and why I think it is necessary that I be allowed to upgrade my Bad Conduct Discharge to an Honorable discharge. Previously I attempted to submit documentation that I thought at the time would help to explain my situation, and though some of the issues that I had then still stand, I realized upon receiving the Naval Discharge Review Board’s discharge review decisional document, that there were some viewpoints that I apparently did not express accurately.

First and foremost, I must convey to you that I assume full responsibility for my actions which led up to my discharge and have been feeling the repercussions of said actions for the past 15 years of my life, EVERYDAY. What I mean to say is that I do not blame the United States Navy or anybody else but myself for receiving the discharge that I did, and at the time I acknowledge that I received it accordingly.

I do feel that given my extreme immaturity at the time and the lack of knowledge of the long term affects that this would have on my life, that these two components together are the main reason for the choices that I made. In hindsight, I was wrong in how I conducted myself but have since gained a whole new outlook on life in general, especially pertaining to responsibilities.

In your records you should have my original issues that I had sent at that time, however, upon reviewing them I was hoping that the board would consider letting me elaborate on them in this letter.

They are as follow;

3.  I felt at the time of my enlistment that my CPO was, in fact, discriminating against me for unknown reasons. I do not have any paperwork to support this, but it did create a negative response from me at the time. I feel that given the same circumstances today that I would not even see it as discrimination, but as more of a discipline that my superior was trying to teach me. I do have respect for the men that I served under regardless of the outcome of this situation.

4.  I feel that honestly my immaturity at the time ultimately led to my discharge not thinking ahead and not realizing how serious the affects on my life would be
once I was discharged in this way, but again, I accept responsibility for my wrong doings and just wish to convey that I am a completely different person these days and would not do these things that I did at that time in my life. I have earned a degree and am gainfully employed, and am contributing to raising two children.

5.  I have often considered seeking a career in law enforcement, but because of my status with the United States Navy was reluctant to even pursue a career in that field. I do understand that it is not an automatic disqualification, but now I am a Father and very family oriented now and wish to have pride when telling my children of my experience with the Navy. I was told upon enrolling in the Navy that the apprentice training program was my best choice, but I was told wrong. I was young and full of eagerness, and it just seemed at the time to be a hopeless scenario.

6.  I do believe that none of these things would take place had I been more focused and not as immature. Now that I am a grown man and understand a lot more about life I realize what a huge mistake I made in conducting myself the ways that I did back then. I have often pondered joining a reserve unit for the United States and still wish to, probably the U.S. Coast Guard if possible.

I hope that this letter has served its purpose and look forward to meeting with someone in person so that I can verbally express my feelings on this matter and I am sure that whatever decision is made will be the just and right one. Thank you so much for your time and understanding.”

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

7.  “(Equity Issue) Pursuant to 10 USC 874 (b) (UCMJ, Article 74) and in accordance with SECNAVINST 5420.174C, enclosure (1), paragraphs 2.24 and 9.3, this former member requests 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; SECNAVINST 5420.174C, enclosure (1), paragraph 1.16, The American Legion submits to the Naval Discharge Review Board (NDRB or Board) the above issue in supplement to the Applicant’s petition. 

The American Legion’s express purpose in providing this statement, and any other submittals or evidence filed, is to assist this Applicant in the clarification and resolution of the impropriety or inequity raised.  To that end, 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:

Copy of Associate of Arts degree from Platt College, dated May 1, 1997
Character Reference Letters (3)
Copy of Real Estate Business Card
Copy of Name Change Court Documents, dated February 25, 1998

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	870120 - 870125	COG
	Active:   USN			None

Period of Service Under Review:

Date of Enlistment:  870126		Date of Discharge:  891025

Length of Service (years, months, days):

	Active:    02  05  13 (Excludes lost time)
	Inactive:  None

Age at Entry:  20			Years Contracted:  4 

Education Level:  12			AFQT:  57

Highest Rate:  SA

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.00 (1)	Behavior:  2.80 (1)		OTA:  3.00

Military Decorations:  None

Unit/Campaign/Service Awards:  None

Days of Unauthorized Absence:  35

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:

870226:	Retention Warning:  Advised of deficiency (Drug abuser as per level accession urinalysis test positive for THC (Cannabis/Marijuana) controlled substance), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 

871003:	Retention Warning:  Advised of deficiency (Coming in late for work and taking off during working hours unauthorized absent from appointed place of duty), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 

871020:	Retention Warning:  Advised of deficiency (SNM was instructed to purchase items needed to complete this sea bag, and failed to do so.  Item; boondockers (shoes) notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

871024:	Retention Warning:  Advised of deficiency (Page 13 entry 871003, page 13 entry 871020 and reason given to UA on 871024 from 0500-0730), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 

880119:	NJP for violation of UCMJ, Article 86: (3 specifications), Unauthorized absence from 880111 to 880115, a period of 4 days, 6 hours and 30 minutes.
	Award:  Correctional Custody for 30 days.  No indication of appeal in the record.

880327:	Retention Warning:  Advised of deficiency (Violation of UCMJ, Article 86: Unauthorized absence), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 

880327:	NJP for violation of UCMJ, Article 86: Unauthorized absence from 880318 to 880321 (3days/S).
	Award:  Forfeiture of ½ pay per month for 2 months (suspended for 3 months).  No indication of appeal in the record.

880327:	Retention Warning:  Advised of deficiency (Violation of UCMJ, Article 91: Disrespect to a Superior Chief Petty Officer on or about 880513), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

880722:	NJP for violation of UCMJ, Article 86 (8 Specifications), Spec 1: UA from 880706-880707 (1day/S), Spec 2: UA from 880808-880811(3days/S), Spec 3: Failed to go on 880711, Spec 4: UA from 880712-880713(1day/S), Spec 5: UA 0715-1400, 880718, Spec 6: UA from 0715-0900, 880719, Spec 7: 0715-1600, 880720, Spec 8: UA from 0715-1850, 880722.
	Award: Forfeiture of ½ pay per month for 2 months, restriction and extra duty for 45 days (suspended for 6 months).  No indication of appeal in the record.

880821:	Pretrial Restraint 880821-880831.

880831:	Special Court Martial.
	Charge I:  violation of the UCMJ, Article 86:  Unauthorized absence 880729–880221, [23days/A].  Charge II:  violation of the UCMJ, Article134: Wrongful possess with intent to deceive, a certain instrument purporting to be a military identification card on 880821.
	Findings:  to Charge I and specification 1 thereunder, guilty.  To Charge II and specification 1 thereunder, guilty except “with intent to deceive”.
	Sentence:  CHL for 2 months, forfeiture of $400 per month for 2 months, reduction to E-1, Bad Conduct discharge.
	CA 881118:  Sentence approved and ordered executed, except for Bad Conduct discharge.
	SA:  see SSPCMO.

881011:	Applicant waived clemency review {Extracted from NC&PB computer system}.

890214:	NMCCMR:  The findings of guilty and sentence, as approved on review, are affirmed.

890629:	COMA:  Request for appeal denied.

890802:	SSPCMO:  Article 71c, UCMJ, having been complied with, Bad Conduct discharge ordered executed.

000411:	NDRB documentary record review Docket Number ND99-00943 conducted.  Determination:  discharge proper and equitable; relief not warranted.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19891025 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 1-4, 7:  The Applicant’s case was considered under the pertinent standards of equity to determine if any factors in this particular case merited clemency.  The Applicant’s service was marred by award of nonjudicial punishment (NJP) on three occasions and a special court-martial for violation of Article 86 of the UCMJ.  The NDRB found the evidence of record did not contain sufficient mitigating or extenuating factors to offset the seriousness of the offenses for which the discharge was awarded.  Relief denied.

Issue 5:  The Board has no authority to upgrade a discharge for the sole purpose of enhancing employment.  Regulations limit the Board’s review of a court-martial to a determination of appropriateness of clemency.

Issue 6:  The NDRB has no jurisdiction over reenlistment, reentry, or reinstatement into the Navy.  Neither a less than fully honorable discharge nor an unfavorable "RE" code is, in itself, a bar to reenlistment.  A request for a waiver is normally done only during the processing of a formal application for enlistment through a recruiter.  

The following if provided for the edification of the Applicant.  The NDRB has no authority to provided additional review of this case.  The Applicant may, however, petition the Board for Correction of Naval Records (BCNR), 2 Navy Annex, Washington, DC 20370-5100, concerning a change in the characterization of naval service, if he desires further review of his case.

Pertinent Regulation/Law (at time of discharge)

A.  The Naval Military Personnel Manual, (NAVPERS 15560A), effective 15 Jun 87 until 13 Dec 89, 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.

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 D.C.  20374-5023