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

  ex-CTRSR, USN
Docket No. ND04-00153

Applicant’s Request

The application for discharge review was received on 20031028.  The Applicant requests the characterization of service received at the time of discharge be changed to entry level separation or uncharacterized.  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 20040715.  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.  “During my entire enlistment (48 mos +) this is the only negative action.”

Documentation

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

Reference Letter dated November 16, 2002 (2 pages)
Reference Letter dated November 13, 2002
Job/Character Reference Letter dated January 30, 2003

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	None
	Active:   USN 			None

Period of Service Under Review:

Date of Enlistment:  930427		Date of Discharge:  970723

Length of Service (years, months, days):

	Active:    02  07  16
	Inactive:  None

Age at Entry:  18			Years Contracted:  4 

Education Level:  12			AFQT:  77

Highest Rate:  CTRSN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.60 (1)	Behavior:  3.80 (1)		OTA:  3.80

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM, ASR, REM

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 3640420.

Chronological Listing of Significant Service Events:

950609:	NJP for violation of UCMJ, Article 92: (4 specs), failure to obey order or regulation.
	Award:  Restriction and extra duty for 30 days, reduction in rate (suspended for 6 months).  No indication of appeal in the record.

951027:	Reduction in rate suspended at CO’s NJP on 950609 vacated.
 
951213:	Special Court Martial [trial dates 951213]
	Charge I:  violation of the UCMJ, Article 123a, (4 Specifications).
	Specification 1:  Did, on diverse occasions from around December 1994 to around January 1995, with intent to defraud and for the procurement of thing of value, wrongfully and unlawfully make and utter to Bank One, a certain drafts upon Pen Air Federal Credit Union in words and figures as follows, to wit: Draft Number 364, date 29 December 1994, amount $1000.00.  Draft Number 364, date 1 January 1995, Amount $1600.00.  Draft Number 366, date 10 January 1995, Amount $2500.00; then knowing that he did not and would not have sufficient funds in and credit with said Pen Air Federal Credit Union for the payment of said drafts in full upon their presentment; Specification 2: Did, on diverse occasions from around August 1995, with intent to defraud and for the procurement of thing of value, wrongfully and unlawfully make and utter to Lackland Federal Credit Union, certain drafts upon Pen Air Federal Credit Union in words and figures as follows, to wit: Draft Number 476, date 4 August 1995, amount $383.47.  Draft Number 506, date 17 August 1995, Amount $637.00.  Draft Number 507, date 10 August 1995, Amount $637.00, then knowing that he did not and would not have sufficient funds in and credit with said Pen Air Federal Credit Union for the payment of said drafts in full upon their presentment; Specification 3: Did, on or about 15 September 1995, with intent to deceive and for the purpose of paying a debt, wrongfully and unlawfully make and utter to J___ E___, a certain draft upon Pen Air Federal Credit Union in words and figures as follows, to wit: Draft Number 530, date 15 September 1995, Amount $400.00, then knowing that he did not and would not have sufficient funds in and credit with said Pen Air Federal Credit Union for the payment of said drafts in full upon their presentment; Specification 4: Did, on or about 14 February 1995, with intent to deceive and for the purpose of paying a debt, wrongfully and unlawfully make and utter to J___ M___, a certain draft upon Pen Air Federal Credit Union in words and figures as follows, to wit: Draft Number 345, date 14 September 1995, Amount $1050.00, then knowing that he did not and would not have sufficient funds in and credit with said Pen Air Federal Credit Union for the payment of said drafts in full upon their presentment.
	Findings:  to Charge I and specifications 1 thru 4 thereunder, guilty.
	Sentence:  Confinement for 5 months, forfeiture of $550.00 pay per month for 5 months, reduction to E-1, Bad Conduct discharge.
	CA 960401:  Sentence approved and ordered executed, except for bad conduct discharge.
	
951213:	Joined Naval Consolidated Brig, Miramar, California for confinement.

960417:	From confinement; to appellate leave.

970214:	NMCCCA:  The findings of guilty and sentence as approved on review 
	are affirmed.

970711:	COMA:  Request for appeal denied.

970723:	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 19970723 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.  By regulation, members discharged within the first 180 days of enlistment are given characterization of service "Uncharacterized" or entry-level separation unless there were unusual circumstances regarding performance or conduct, which would merit an "honorable" characterization.  The Applicant was on active duty for in excess of two year, this making him ineligible for and entry-level separation.  Relief denied.

The Applicant states that he had only this one negative action in “48+ months.” Despite a servicemember’s prior record of service, certain serious offenses, even though isolated, warrant separation from the naval service in order to maintain proper order and discipline.  The Applicant’s service was marred by a nonjudicial punishment proceeding for four specifications of violations of Article 92 of the UCMJ as well as a Special Court Martial conviction of eight violations of Article 123a of the UCMJ for uttering over $8200 in drafts knowing that he did not and would not have sufficient funds for payment.  The Applicant’s conduct, which forms the primary basis for determining the character of his service, reflects his willful failure to meet the requirements of his contract with the U.S. Navy and falls far short of that required for an upgrade of his characterization of service.  Relief is not warranted.

The Applicant’s case was considered under the pertinent standards of equity to determine if any factors in this particular case merited clemency.  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.  

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 14, effective 
03 Oct 96 until 14 Dec 98, 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 123a, Check, insufficient funds, intent to deceive.

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