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

FOR OFFICIAL USE ONLY

  ex-ACAR, USN
Docket No. ND05-00345

Applicant’s Request

The application for discharge review was received on 20041217.  The Applicant requests the Discharge 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 designate a representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20060316.  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 and reason for discharge shall not change.  The discharge shall remain as a bad conduct discharge by reason of court-martial conviction.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

“Hello, I am writing respectfully requesting my bad conduct discharge to be upgraded.  I served five and a half years in the navy and I feel that a bad conduct discharge does not summarize my whole enlistment.  I have never received and written or verbal counseling from any of my supervisors.  I was awarded sailor of the quarter on more than one occasion.  I was advanced to Air traffic controller second-class petty officer long before I got my good conduct medal. I also was the first junior E-5 in my division to receive an end of tour Navy and marine achievement medal.  My last evaluation from the USS George Washington truly best describes me.  I also qualified in minimum time at an outlying field that I was assigned to as a result of NAS Cecil Field BRAK closure.  As I look back at my naval career, I can’t imagine going on with my life branded as I am.  I am not making any excuses, nor blaming anyone for my actions.  I would like to apply the priceless knowledge and experience that I obtained in the navy in the civilian sector.  I applied to the FAA and DOD agencies, they both told me that I had the experience, but my discharge was holding me back.  I’ve been eagerly trying for years now.  I am not trying to tell a sob story, I am just asking for a second chance to live the American dream.  I don’t want to pay for a mistake for the rest of my life.  In the eyes of the FAA, my bad conduct discharge is worst than a felony.  It surely feels that way.  I am currently 28.  The FAA has a hiring cutoff for air traffic controllers set at the age of 31.  On February 14, 2005, I will officially have two years to gain employment with the FAA.  I would like to take this time to thank the board for hearing my request.  Enclosed are pages from my service record.  When I was stationed on the USS George Washington, our carrier air wing commander was Capt. J_ “B_” S_ (RADM now), I knew him from being the air operations supervisor, he would always commend me on doing a great job assisting the air operations officer during flight operations. Before he left the ship, he came to say his goodbyes, and he told me, if I ever needed anything, let him know, I wish I had him for a character witness.”

Documentation

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

Service record
Applicant’s DD Form 214
Forty-two pages from Applicant’s service record
Request for Clemency from letter LT D_ P_ JAGC USNR, Defense Counsel,
dtd 23 AUG 00 (2 pgs)
FAA Form 7220 Air Traffic Control Specialist, (Pink Card),dtd 14 DEC 94 
FAA Control Tower Operator License, dtd 14 DEC 1998
Copy of Navy Achievement Medal Certificate, dtd OCT 97
Letter of Appreciation from the CO USS George Washington, dtd 4 MAY 95
Copy of Administrative Remarks from USS George Washington (Enrollment in Enlisted
Aviation Warfare Specialist Program), dtd 22 MAR 96
Copy of Administrative Remarks from USS George Washington (Completion of Enlisted
Aviation Warfare Specialist Program), dtd 28 OCT 97
Copy of Battle “E” Certificate
E-mail from R_ A. P_ Jr., ACCM/(AW/SW) USN, dtd 14 MAR 00
E-mail from D_ J. M_, LCDR, USN, dtd 14 MAR 00
Exerpt from cross- examination of Applicants Mother, Ms. B_  (4 pgs)

PART II - SUMMARY OF SERVICE

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

	Inactive:  USNR (DEP)	19940104 - 19940622	COG
	Active:    None

Period of Service Under Review:

Date of Enlistment:  19940623		Date of Discharge:  20040910

Length of Service (years, months, days):

	Active:    10  02  18  (Does not exclude lost time.)
	Inactive:  None

Time Lost During This Period (days):

	Unauthorized absence:       None
	Confinement:		       None
	Appellate leave:	1630 days

Age at Entry:  18

Years Contracted:  4 (19 month extension)

Education Level:  12				AFQT:  52

Highest Rate:  AC2

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  4.0 (3)			Behavior:  4.0 (3)	OTA:  4.00 (4.0 evals)
Performance:  3.4 (4)			Behavior:  3.3 (4)	OTA:  3.47 (5.0 evals)

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214):  National Defense Service Medal, Goode Conduct Medal, Sea Service Deployment Ribbon, Armed Forces Expeditionary Medal, Armed Forces Service Medal, NATO Medal, Navy and Marine Corps Achievement Medal, Battle “E” Ribbon

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

BAD CONDUCT/COURT MARTIAL, authority: NAVMILPERSMAN, Article 5815-010.

Chronological Listing of Significant Service Events: 

000317:	Special Court Martial
	Charge I:  violation of the UCMJ, Article 121:
	Specification:  Larceny.  Plea:  Not Guilty.  Findings:  Guilty.
	Sentence:  Reduction to E-1, Bad Conduct discharge.
	CA:  Not found in service record.
	SA:  see SSPCMO.  Not found in service record.
	
000325:	Applicant to appellate leave.

001004:	NMCCCA:  The findings of guilty and sentence, as approved on review, 
	are affirmed.  [Based on NC&PB data base.]  [On 5 Oct 94, the NMCCMR changed their name to the Navy Marine Corps Court of Criminal Appeals (NMCCCA)]

040910:	SSPCMO:  Article 71c, UCMJ, having been complied with, Bad Conduct discharge ordered executed.  [Extracted from DD Form 214, Block 25 and NC&PB data base.]

Service Record did not contain the Court Martial Discharge package.  

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20040910 with a bad conduct discharge which was the sentence adjudged by a properly convened special court-martial.  Both the convening and appellate review authorities (A and B) subsequently approved that sentence. After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, the Board found that the Applicant’s issues were insufficient to merit clemency (C).  The Board presumed regularity in the conduct of governmental affairs (D).  

In response to the Applicant’s issue, relevant and material facts 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, 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 following is provided for the edification of the Applicant.  Normally, to permit relief, a procedural impropriety or inequity must have occurred during the discharge process for the period of enlistment in question.  The Board discovered no impropriety after a review of Applicant’s case.  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 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 did not provided any post-service documentation for the Board to consider.  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 additional evidence related to this discharge.  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 8, effective 
9 Sep 2004 until Present, Article 5815-010, 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 121, (Larceny).

C.   Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part II, Para 205(2), Jurisdictional Limitations Authority for Review of Discharges.

D.   Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part II, Para 211, Regularity of Government Affairs.  

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