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

 
ex-SR, USN
Docket No. ND05-00007

Applicant’s Request

The application for discharge review was received on 20040927.  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 20050228.  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.  “I have 3 children and a wife I am struggling to support.  I have dental problems that need immediate attention and I sorely regret ruining my military career that early in my life much less at all I would have liked to been in the last war in Iraq.  I just need a chance to take care of my family and my medical needs.  We are homeless in the City of Sacramento.  And it is tough to find a good paying job.  Please consider my upgrade so that I may better my life and my families life thank you.”

Documentation

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

None

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	921209 - 921216	COG
	Active:    None

Period of Service Under Review:

Date of Enlistment:  921217		Date of Discharge:  940929

Length of Service (years, months, days):

	Active:    01  09  13  (Does not exclude lost time)
	Inactive:  None

Age at Entry:  20			Years Contracted:  4 

Education Level:  12			AFQT:  72

Highest Rate:  SA

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  NMA*		Behavior:  NMA		OTA:  NMA

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM

Days of Unauthorized Absence:  20

*No Marks available for review

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:

930203:	You are being retained in the Naval service, despite your defective enlistment and induction due to fraudulent entry into naval service as evidenced by your failure to disclose your pre-service involvement with civil authorities consisting of the following: Possession of cannabis  8/91, Urbana IL.  Charges dismissed.  However, any further deficiencies in performance or conduct may result in processing for administrative separation.

930719:	Special Court-Martial.
	Charge I:  Violation of the UCMJ, Article 86: (3 Specifications).
	Specification 1: Unauthorized absence 930430 to 930503 (3days/S). Specification 2: Unauthorized absence 0600-1300, 930506.
Specification 3: Unauthorized absence 930507 to 930525 (17days/A).  
Charge II:  Violation of the UCMJ, Article 112a: (3 Specifications). Wrongfully use a controlled substance on or about 930320, 930501 and 930528.  
	Findings:  To Charge I and specifications 1 and 3 thereunder, guilty. To specification 2 thereunder Charge I, not guilty.  To Charge II and specification 1 and 2 thereunder, guilty.  To specification 3 thereunder Charge II, not guilty.    
	Sentence:  Confinement for 90 days, forfeiture of $400.00 pay per month for 3 months, bad conduct discharge.
	CA 930927:  Sentence approved and ordered executed, except for bad conduct discharge.
	
930719:	Joined Navy Brig, NAVSTA NORVA for confinement.

930723:	Waived rights to clemency review [Extracted from NC&PB database].

930807:	Released from confinement and restored to full duty.

940405:	NMCCMR:  The findings of guilty and sentence, as approved on review, are affirmed.  

940929:	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 19940929 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 was found guilty at court-martial of unauthorized absence on two occasions and two specifications of using marijuana.  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 record 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 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 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 86, unauthorized absence; and Article 112a, illegal use of drugs.

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