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

  ex-ASAR, USN
Docket No. ND05-00204

Applicant’s Request

The application for discharge review was received on 20041109.  The Applicant requested the characterization of service received at the time of discharge be changed to general/under honorable conditions.  The Applicant requested a documentary record review.  The Applicant did not list a representative on his DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20050214.  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, authority: NAVMILPERSMAN, Article 3640420.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

1.  “To better my way of life such as going to college.”

Documentation

The Applicant did not submit any additional documentation for the Board’s consideration during the deliberation of his case.

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	901023 - 910304	COG
	Active:   USN 			910305 - 950126	HON

Period of Service Under Review:

Date of Enlistment:  950127		Date of Discharge:  971024

Length of Service (years, months, days):

	Active:    02  08  28  (Does not account for lost time.)
	Inactive:  None

Age at Entry:  24			Years Contracted:  3 (2nd Enlistment)

Education Level:  12			AFQT:  32

Highest Rate:  ASAN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  2.80 (1)		Behavior:  2.80 (1)		OTA:  3.20

Military Decorations:  LtrComm

Unit/Campaign/Service Awards:  NDSM, SASM, SSDR

Days of Unauthorized Absence:  187

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

BAD CONDUCT/COURT MARTIAL, authority: NAVMILPERSMAN, Article 3640420.

Chronological Listing of Significant Service Events:

950127:	Reenlisted onboard USS EISENHOWER (CVN-69) for 3 years.

950524:	NJP for violation of UCMJ, Article 86: Unauthorized absence from 2400, 950515 to 0021, 950516.
	Award:  Forfeiture of $479.00 pay per month for 1 month (suspended for 6 months), restriction and extra duty for 30 days, reduction to E-2 (suspended for 6 months).  No indication of appeal in the record.

950524:	Retention Warning:  Advised of deficiency (CO’s NJP of 950524 for unauthorized absence from 2400, 950515 to 0021, 950516), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 

950907:	Unauthorized absence 0600-0615, 950907(15 mins).
  
960212:	Summary Court-Martial.
	Charge I:  violation of the UCMJ, Article 86,
	Specification: Unauthorized absence from unit 960103-960202(30 days).  Charge II: violation of the UCMJ, Article 92, 
Specification:  Failing to obey a lawful general regulation by wearing an earring onboard USS DWIGHT D. EISENHOWER (CVN-69)  
	Finding:  Not found in record.
	Sentence:  Reduced to E-1, Forfeiture of $435.00 pay per month for 1 month, and 15 days confinement. (Extracted from Special Court-Martial record of trial.)
	CA action (Unknown):  Not found in record.

960823:	Report of Return of Deserter.  Applicant apprehended by civil authorities on 960823 (0045) at Philadelphia, PA.  Returned to military control 960823 (0045).  

960823:	Pre-trial confinement from 960823-961004 (42 days).
 
961004:	Special Court Martial 
	Charge I:  violation of the UCMJ, Article 85: 
Specification:  Absent himself from his unit on 19 March 1996 until he was apprehended on 22 August 1996 with the intent to remain away permanently.
Charge II: violation of UCMJ, Article 86, (2 Specifications):
Specification 1:  Absent himself from his unit on 1 Mar 96 until 2 Mar 96. 
Specification 2:  Absent himself from his unit on 2 Mar 96 until 4 Mar 96. Charge III: violation of UCMJ, Article 112a: 
Specification:  Wrongful use of a controlled substance, to wit: marijuana, on or about 960302.
Additional charge: violation of UCMJ, Article 121:
Specification:  Did steal U. S. currency in the amount of $980.00.       
	Findings:  To Charge I and the specification thereunder, not guilty; but guilty to the lesser included offense as follows: “Absent himself from his unit on 19 March 1996 until he was apprehended on 22 August 1996.”  To Charge II and specification 1 and 2 thereunder, not guilty.  To Charge III and the specification thereunder, guilty.  To the Additional Charge and the specification thereunder, not guilty.  
	Sentence:  Confinement for 90 days, reduction to E-1, Bad Conduct discharge.
	CA 961213:  Sentence approved, except for that part of the sentence extending to a bad conduct discharge, will be executed; however, the execution of that part of the sentence extending to confinement in excess of 60 days shall be suspended for a period of 6 months from the date the sentence was adjudged.
	
961004:	Joined NAVBRIG, NAVSTA NORVA, for confinement.

961011:	Applicant declined offer of Level III treatment.

961011:	From confinement; to appellate leave.

970805:	NMCCCA:  The findings of guilty and sentence, as approved on review, are affirmed.

971024:	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 19971024 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 Veterans Administration determines eligibility for post-service benefits not the Naval Discharge Review Board (NDRB).  There is no requirement or law that grants recharacterization solely on the issue of obtaining educational or Veteran’s benefits.  This issue does not serve to provide a foundation upon which the Board can grant relief.

The following is provided for the Applicant’s edification, the relevant and material details stated in a court-martial specification are presumed by the NDRB to be established facts.  With respect to a discharge adjudged by a court-martial case tried under the Uniform Code of Military Justice, the action of the NDRB is restricted to upgrades based upon clemency only.  The Applicant's case was considered under the pertinent standards of equity to determine if any factors in this particular case merited clemency.  The service records the Board reviewed showed no mitigating or extenuating factors sufficient to offset the seriousness of the offenses for which the Applicant’s discharge was awarded.  Relief is therefore denied.
 
There is no law or regulation that provides for an unfavorable discharge to be upgraded based solely on the passage of time or good conduct in the civilian life subsequent to leaving the service.  However, the NDRB is authorized to consider post-service factors in the recharacterization of a discharge.  Outstanding post-service conduct, to the extent that such matters provide a basis for a more thorough understanding of the Applicant's performance and conduct during the period of service under review may be considered.  Verifiable proof of post-service accomplishments must be provided in order for the Applicant to claim post-service conduct and behavior as a reason to upgrade a less than honorable discharge.  Evidence of continuing educational pursuits, an employment record, documentation of community service, certification of non-involvement with civil authorities, and credible evidence of a substance-free lifestyle are examples of verifiable documents that may be provided to receive consideration for relief based on post-service conduct.  The Applicant did not provide any additional documentation for the Board to consider during the deliberations of his case.
 
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 86, unauthorized absence for more than 30 days; Article 92, Failure to obey a regulation; Article 112a, Wrongful use of controlled substances.

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