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

 
ex-BTFR, USN
Docket No. ND04-00512

Applicant’s Request

The application for discharge review was received on 20040209.  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 submitting DD Form 293, the Applicant obtained representation from American Legion.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20050224.  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 discharge, I feel was given to me upon my captain’ using me as an example and a one time incident that occurred (1 and only time) in a 4+ years in the U.S. Navy.  I did 4 years of good service and reinlisted another four year term when I was court-martialed out of the navy.  As my first enlistment records indicate.  I had a good record before my reinlistment and for the last 7-8 years I’ve improved the quality of my life and would like to use my right to change my discharge status to continue to advance my opportunities, rather than continue this hamper on my life from this present BCD status.

Thank-you”

Additional issues submitted by Applicant’s counsel/representative (AMERICAN LEGION):

2.  “Equity Issue:  Pursuant to 10 USC 874 (b) (UCMJ, Article 74) and in accordance with SECNAVINST 5420.174D, Part IV, Paragraph 403 m (7), on this former member’s behalf we request the Board’s clemency relief with up-grade of his characterization of service on the basis of his post-service conduct.
_______________________________________________________________________

In accordance with Title 32, CFR, Section 724.166 and SECNAVINST 5420.174D, Part I, Paragraph 1.20, The American Legion submits to the Naval Discharge Review Board (NDRB or Board) the above issue and following statement in supplement to the Applicant’s petition.

The Board’s attention is invited to Blocks 10 and 18 of DD Form 214.  This former member served his first contract honorably and then reenlisted on 940909.  Per BUPERSINST 1900.8, Block 18 should include “Continuous Honorable Active Service from 901116 until 940908” and appropriate corrections made to Block 10.

Review of the available records reflects that this former member had prior honorable service and earned a SSDR (3), GCM and LOC.  He was convicted by SPCM 950303 for VUCMJ, Article 121 (8 specs).  Following approval by the convening authority on 950918 and affirmation by the NMCCA on 960521, he was separated on 960808 with a Bad Conduct discharge due to conviction by court martial as authorized by NAVMILPERSMAN, Article 3640420.

Essentially, as noted on DD Form 293, this Applicant is requesting that his discharge be upgraded because it is too harsh in light of his overall service record.  He has not submitted any additional documentation for consideration.

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, USC, Section 1553 and set forth in Title 32, CFR, Part 724 and SECNAVINST 5420.174D.

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

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	901113 - 901115	COG
	Active:   USN 			901116 - 940908	HON

Period of Service Under Review:

Date of Enlistment:  940909		Date of Discharge:  960808

Length of Service (years, months, days):

	Active:    01  11  30
	Inactive:  None

Age at Entry:  31			Years Contracted:  4

Education Level:  12			AFQT:  35

Highest Rate:  BT3

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  1.00 (1)		Behavior:  1.00 (1)		OTA:  1.00

Military Decorations:  None

Unit/Campaign/Service Awards:  LoC, SSDR (3), GCM

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:

940909:	Reenlisted for 4 years. 

950303:	Special Court Martial
	Charge I:  violation of the UCMJ, Article 107, false statement.
	Specification:  Make a false official statement to NCIS agent on 941101.
	Charge II:  violation of the UCMJ, Article 121, larceny, (8) Specifications.
	Specification 1:  On or about 940915 steal $200.00 the property of NFCU.
	Specification 2:  On or about 940916 steal $200.00 the property of NFCU.
	Specification 3:  On or about 940917 steal $30.00 the property of NFCU.
	Specification 4:  On or about 940930 steal $200.00 the property of NFCU.
	Specification 5:  On or about 941001 steal $200.00 the property of NFCU.
	Specification 6:  On or about 941002 steal $50.00 the property of NFCU.
	Specification 7:  On or about 941014 steal $200.00 the property of NFCU.
	Specification 8:  On or about 941015 steal $120.00 the property of NFCU.
	Findings:  to Charge I and specification thereunder, not guilty.  To charge II and specifications thereunder, guilty.
	Sentence:  45 days confinement, forfeiture of $500 per month for (2) months(s), reduction to E-1, Bad Conduct discharge.
	CA 950918:  Sentence approved and ordered executed, except for bad conduct discharge.

960521:	NMCCCA:  The findings of guilty and sentence, as approved on review, are affirmed.

960807:	Navy-Marine Corps Appellate Leave Activity completes appellate review.

960808:	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 19960808 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.     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, to include prior honorable service, post service accomplishments, and issues submitted, the Board determined that clemency was not warranted and that the sentence awarded the Applicant at his court-martial was appropriate for the offenses he committed.  Relief denied

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.  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 121,  larceny of a value more than $100.00.

C.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part II, 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 “http://Boards.law.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:

		Secretary of the Navy Council of Review Boards
		Attn:  Naval Discharge Review Board
		720 Kennon Street SE Rm 309
		Washington Navy Yard DC  20374-5023