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

ex-SR, USN 
Docket No. ND04-01184

Applicant’s Request

The application for discharge review was received on 20040722.  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 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 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 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:

1.  “ISSUES: Why an upgrade or change is requested and justification for the request.
The following issues are the reasons I believe my discharge should be upgraded to General (Under Honorable Conditions).  My problems started when a friend, K_, and I went to a golf tournament in Florida.  I placed first in the tournament and won a large sum of money.  K_ told me not to tell anyone about winning the money.  He said that if I told anyone he would get me into trouble with the Commander.  I was young and very immature and believed K_.  I was very confused and did not understand how K_ would get me into trouble but I believed him.  Upon returning to my ship I deposited the large check in a checking account.  I did not understand that it would be several days before the money was available.  I purchased a car and wrote a check for it.  The check bounced because the money was not available in my account.  The bounced check was reported to my ship.  I was called in and counseled by my senior chief.  The senior chief showed me the check and we discussed what had occurred.  After discussing the matter the senior chief said that he would tear up the check and nothing further would happen.
This turned out to be false as I was charged and sent to Captain’s Mast where I was reduced to E- 1, fined and confined to the ship.  I had a Navy lawyer who was no help to me at all.  I tried several times to discuss my case with the lawyer but he refused.  During the hearing he just handed me sticky notes to read to the judge of the case.  I was not allowed to call witnesses.  I believe the lawyer did not fairly represent me.
I believe the charges against me were excessive due to the circumstances.  I do not believe that I should have been given a Bad Conduct discharge.  I believe my immaturity and lack of understanding of what was happening prevented me from effectively defending myself. I also question why I was not allowed to review and sign my DD Form 214 when I was discharged.  I should have been given the opportunity to review the type of separation and character of service before the DD Form 214 was issued.  I am requesting that my discharge be upgraded to General (Under Honorable Conditions).  I do not believe that my conduct warrants a Bad Conduct Discharge.  Please take in to consideration my youth and immaturity at the time this incident occurred.  Since my discharge I have matured greatly and have no problems handling my financial affairs as attested to in the attached letters.

Your assistance in this matter will be greatly appreciated.”

Documentation

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

Applicant’s DD Form 214
	Ltr from J_ B_ dtd 040113
	Ltr from J_ G_ undated
	Ltr from P_ F_, Ph.D.

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	870624 - 880619	COG
	Active:   None

Period of Service Under Review:

Date of Enlistment:  880620		Date of Discharge:  920807

Length of Service (years, months, days):

	Active:    04  01  18		[Does not exclude lost time]
	Inactive:  None

Age at Entry:  18			Years Contracted:  4 

Education Level:  12			AFQT:  44

Highest Rate:  SN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.40 (1)	Behavior:  3.50 (2)		OTA:  3.40

Military Decorations:  None

Unit/Campaign/Service Awards:  CGSSR, CGBUC 

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 3640420.

Chronological Listing of Significant Service Events:

900616:	NJP for violation of UCMJ, Article 107:  Falsely signing an official document.
	Award:  Restriction and extra duty for 45 days, reduction to E-2 (Susp 6 mos.).  No indication of appeal in the record.

900627:	Counseling:  Advised of deficiency (Failure of PRT standards), notified of corrective actions and assistance available.

910426:	Special Court Martial 
	Charge I:  Violation of the UCMJ, Article 86, (3) Specifications:
	Specification 1:  Failure to go at time prescribed on 15 Sep 90.
	Specification 2:  UA from unit from 0630, 16 Sep 90 to 0530 17 Sep 90.
	Specification 3:  UA from unit from 14 Oct 90 to 18 Oct 90.
	Chare II:  Violation of the UCMJ, Article 87.
	Specification:  Miss movement through design 15 Oct 90.
	Charge III:  Violation of the UCMJ, Article 123a, (3) Specifications:
	Specification 1:  With intent to deceive, a check for $4000.00
	Specification 2:  With intent to deceive, a check for $29482.00
	Specification 3:  With intent to deceive, a check for $150.00
	Charge IV:  Violation of the UCMJ, Article 134, Specification:
	Specification:  Make under lawful oath a false statement in substance as follows: that he believed that two hundred thousand dollars had been deposited in his checking account and that there were sufficient funds to cover checks in the amount of $4000.00 and $29482.00.
	Findings:  To all charges and specifications, guilty, except to Charge II, which shall be by neglect in lieu of by design.
	Sentence:  Confinement for 6 months, forfeiture of $500 per month for (6) months, reduction to E-1, Bad Conduct discharge.
	CA 910426:  Sentence approved and ordered executed except for 75 das of confinement which is susp for a period of 6 mos, except for bad conduct discharge.
	SA:  see SSPCMO.

910821:	NMCCMR:  The findings of guilty and sentence, as approved on review, are affirmed.

911210:	No petition for review received by NMCARA, appellate review complete.

920807 :	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 19920807 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.  The Applicant states, “I did not understand that it would be several days before the money was available” and “…the lawyer did not fairly represent me” in support of upgrading his discharge to general (under honorable conditions).  The Applicant also states, “After discussing the matter the senior chief said that he would tear up the check and nothing further would happen.”  Finally, the Applicant requests the Board take into consideration the Applicant’s “youth and immaturity at the time the incident occurred.” 

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 considering the Applicant’s statements and the evidence of record, the Board determined that there was no indication that the Applicant was denied any due process and that the Applicant’s youth and immaturity did not merit clemency.  Further, 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.

Regarding the Applicant’s assertion that he did not understand that it would several days before money was available, relevant and material facts stated in court-martial specifications are presumed by the NDRB to be established facts.   The Applicant was found guilty at court-martial of three specifications of a Violation of 123a of the UCMJ, for uttering checks with the intent to deceive.  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), effective 15 Aug 91 until 04 Mar 93, 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 86 (unauthorized absence for more than 30 days), Article 87 (missing movement through neglect) and Article 123 (checks, etc, more than $100).

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