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

 ex-AR, USN
Docket No. ND04-00629

Applicant’s Request

The application for discharge review was received on 20040302.  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, D.C. Metropolitan Area.  The Applicant listed a civilian counsel 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 20041222.  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 3 to 2 that the character of the discharge shall not change.  The discharge shall remain: BAD CONDUCT/Convicted by special court martial, authority: NAVMILPERSMAN, Article 5815-010 (formerly 3640420).

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Issues submitted by Applicant’s counsel/representative:

“Issue 1:  The Bad-Conduct Discharge (“BCD”) given to Applicant was inequitable and/or improper because counsel’s performance was at best, woefully inadequate for Applicant’s trial by Special Court-Martial (“SCM”) and at worst, amounted to the ineffective assistance of counsel.”

“Issue 2:  The discharge was inequitable because Applicant’s roommate received a more favorable discharge (Other than Honorable) than did Applicant (BCD), even though Applicant had convinced his roommate to return to the command with him and thus both avoided being charged with the more serious offense of desertion, given that both Applicant and roommate were on Unauthorized Absence (“UA”) together for the same number of days and were the same rank with comparable service and disciplinary records.”

“The above issues, when taken separately or together as a total picture of what Applicant endured in his SCM, support Applicant’s request for a change of discharge from bad-conduct to Honorable.”

Documentation

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

Letter from R_ J. C_, Attorney and Counselor at Law dated February 27, 2004
Copy of DD Form 214
Copy of A_ S_’s DD Form 214
Letter from R_ J. C_, Attorney and Counselor at Law dated January 16, 2004
Facts and Arguments in Support of Issue 1 (2 pages)
Facts and Arguments in Support of Issue 2 (2 pages)
Attached Information for Block 16 (Remarks) of DD Form 293
Selected pages of Applicant’s Record of Trial (5 pages) 
Partial Copy of Memorandum of Pretrial Agreement 
Copy of Appendix to Memorandum of Pretrial Agreement
Copy of Department of Defense National Agency Questionnaire
Copy of Commanding Officer’s Recommendation for Separation Letter for Applicant’s roommate dated February 24, 1998
Copy of Report of Results of Trial for Applicant
Copy of Report of Result of Trial for A_ S_(2 pages)
Copy of Commanding Officer NJP dated April 28, 1995
Copy of Commanding Officer NJP dated January 5, 1996
Copy of Commanding Officer NJP of A_ S_ dated March 13, 1997
Copy of Administrative Board Procedure Acknowledgement Letter for A_ S_
Copy of NDRB’s Incomplete Letter to Applicant
Letter from R_ J. C_, Attorney and Counselor at Law dated April 7, 2004    
Copy of NDRB’s Request for Information Letter to Applicant 
Copy of Unofficial Transcript from Embry-Riddle Aeronautical University (3pages)
Copy of Evaluation Summary Table 
Copies of Evaluation Reports & Counseling Record (8 pages)

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	940817 - 941025	COG
	Active:   USN 			None

Period of Service Under Review:

Date of Enlistment:  941026		Date of Discharge:  990808

Length of Service (years, months, days):

	Active:    03  01  22
	Inactive:  None

Age at Entry:  19			Years Contracted:  4 

Education Level:  12			AFQT:  78

Highest Rate:  AN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.00 (4)	Behavior:  2.50 (4)		OTA:  2.91

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM, SSDR(2), SASM(w/ bronze star), AFEM, LOC, LOA

Days of Unauthorized Absence:  5

Character, Narrative Reason, and Authority of Discharge (at time of issuance):

BAD CONDUCT/Convicted by special court martial, authority: NAVMILPERSMAN, Article 5815-010 (formerly 3640420).

Chronological Listing of Significant Service Events:

950428:	NJP for violation of UCMJ, Article 92: Drinking alcohol under age.
	Award:  $150.00 fine.  No indication of appeal in the record.

950428:	Retention Warning:  Advised of deficiency (Wrongfully consuming alcohol while under the legal age), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 

960105:	NJP for violation of UCMJ, Article 86: UA from appointed place of duty 0645-0655; violation of UCMJ Article 92: Drinking underage.
Award:  Forfeiture of ½ month’s pay per month for 2 months, restriction to base for 15 days, extra duty for 15 days, reduction to E-1 (suspended for 6 months).  No indication of appeal in the record.

971209:	Applicant commences a period of unauthorized absence.

980202:	Surrendered on board Strike Fighter Squadron 94 at 1730, 980202.
 
980203:	Pre-trial confinement from 980203 to 980210.

980211:	Special Court Martial 
	Charge I:  violation of the UCMJ, Article 86, On or about 971209, without authority, absence himself from his organization, to wit: Strike Fighter Squadron NINE FOUR, located at Naval Air Station Lemoore, California, and did remain so absent until on or about 980202 [55days/S.]
	Findings:  to Charge I and specification 1 thereunder, guilty.
	Sentence:  Confinement for 20 days, forfeiture of $617.00 pay per month for 6 months, reduction to E-1, Bad Conduct discharge.
	CA 980604:  Sentence approved and ordered executed, except for bad conduct discharge.
	
990421:	NMCCCA:  The findings of guilty and sentence, as approved on review, 
	are affirmed.

990731:	Applicant declined to petition CAAF for review of his case.

990808:	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 19990808 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 and 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, issues submitted, and post service accomplishments, 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 contends that because of deficiencies on the part of his defense counsel at special court-martial and because of disparate punishment between him and his co-offender, he deserves an honorable discharge.  A review of the Applicant’s case by the Navy Marine Corps Court of Criminal Appeals (NMCCA) determined that any deficiency on the part of the trial defense counsel did not amount to plain error.  The Court concluded that the Applicant was not entitled to relief because none of his substantial rights were violated given the leniency of the sentence adjudged and the fact that the trial was held before a military judge.  The Court further concluded that the military judge afforded the Applicant individualized consideration in sentencing that was based upon the nature and seriousness of the offense and the character of the offender.  

While the NMCCA’s decision is not binding upon this Board’s authority to grant clemency, it can be persuasive.  A majority of the Board’s membership reached a similar conclusion to that of the NMCCA.  Any perceived lapse on the part of the trial defense counsel in his failure to object to the admission of the stale NJPs did not rise to the level of plain error and therefore affords the Applicant no relief.  Likewise, the Board found the military judge’s adjudged sentence was appropriate and commensurate with the seriousness of the offense and the character of the offender.  As such, the Board concluded the sentence was appropriate as adjudged.  By a vote of 3 to 2, the Board held that clemency is not warranted.  

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.  As of this time, the Applicant has not provided sufficient documentation for the Board to consider any further relief.  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.  The Applicant can provide documentation to support any claims of post-service accomplishments or any other evidence related to his discharge at that time.  Representation at a personal appearance hearing is recommended but not required.

Pertinent Regulation/Law (at time of discharge)

A.  The Naval Military Personnel Manual, (NAVPERS 15560C), Change 22, effective 15 Dec 98 to 21 Aug 2002, Article 5815-010 (formerly 3640420), Executing a Dishonorable or Bad Conduct Discharge.

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 5420.174D 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