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

 ex-ADAR, USN
Docket No. ND04-00970

Applicant’s Request

The application for discharge review was received on 20040527.  The Applicant requests the characterization of service received at the time of discharge be changed to general/under honorable conditions.  The Applicant requests a documentary record 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 20050118.  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.  “I believe that the discharge awarded was unfair, based on my service prior to my transgression, and when reviewed under the light of my performance & contributions after my discharge from service.”

Documentation

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

Applicant’s DD Form 214
Letter from Applicant
Letter from Applicant’s wife
Criminal record check
Employment reference letter from W_ R_
Employment reference letter from H_ G_
Fourteen pages from Applicant’s service record
Cover letter from Veterans Services Office, Carteret County, NC

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	860118 - 860323	COG
	Active:   USN 			860324 - 920304	HON
		   USN			920305 – 950529	HON

Period of Service Under Review:

Date of Enlistment:  950530		Date of Discharge:  970930

Length of Service (years, months, days):

	Active:    02  04  01 (Does not exclude lost time)
	Inactive:  None

Age at Entry:  29			Years Contracted:  3

Education Level:  11			AFQT:  61

Highest Rate:  AD2

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  4.00 (1)	Behavior:  3.80 (1)		OTA:  3.80 (4.0 system)
		 4.00 (1)		       3.00 (1)			3.29 (5.0 system)

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM, SSDR, MUC, BER, AFEM, GCM (2)

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:

960703:	Special Court Martial [trial dates 960620 and 960703].
	Charge I:  violation of the UCMJ, Article 81.
	Specification: Conspiracy to steal tools, the sum of about $1900.
  	Charge II:  violation of the UCMJ, Article 108.
	Specification 1:  Wrongfully dispose of various tools, military property.
	Specification 2:  Wrongfully sale various tools, military property.
	Charge III:  violation of the UCMJ, Article 121.
	Specification 1:  Wrongfully steal various tools, military property, of a value of about $3000.
	Specification 2:  Wrongfully steal various tools, military property, of a value of about $1100.
Findings:  to charge I and specification thereunder, guilty; to charge II and specification 1 thereunder, guilty; to charge III and specification 1 thereunder, guilty; to charge II and specification 2 thereunder, not guilty; to charge III and specification 2 thereunder, not guilty. 
	Sentence:  Confinement for 75 days, forfeiture of $400 per month for 2 months, reduction to E-1, bad conduct discharge.
	CA 960930:  Sentence approved and ordered executed, except for bad conduct discharge.

970711:	NMCCCA:  The findings of guilty and sentence, as approved on review, are affirmed.  

970930:	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 19970930 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.  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.  The Applicant’s case was considered under the pertinent standards of equity to determine if any factors in this particular case merited clemency.  
After a thorough review of the Applicant’s service 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 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), 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 81, conspiracy; Article 108, wrongful disposition of military property; and Article 121, larceny.

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