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

FOR OFFICIAL USE ONLY

 ex-AR, USNR
Docket No. ND05-00913

Applicant’s Request

The application for discharge review was received on 20050504.  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.  Subsequent to the application, the Applicant obtained Disabled American Veterans as the representative.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20060209.  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 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:

“Respectfully request an upgrade in my discharge status.  Upgrade is necessary to acquire partial disability to help pay medical bills.  Records from the doctor last seen are enclosed.  Phlebitis developed during military service.  The breakdown in my veins and loss of circulation in feet are due to the phlebitis happening more than once, during active duty.  I now have large ulcers on both feet.  I cannot stand for long periods of time, walking is difficult, and sleep is sometimes interrupted due to the pain.  This condition may last the rest of my life, according to doctors.  Despite my less than impressive military career, my obtaining Phlebitis was during active service and was not my fault.  I ask that you please consider this and grant my request.  Thank you for your time and expertise in this matter.

D_ A. W_ (Applicant)

Please send written confirmation of decision”

Additional issues submitted by Applicant’s representative (Disabled American Veterans):

“Dear Chairperson:

After a review of the Former Service Members (FSM) DD Form 293 Application for the Review of Discharge or Dismissal from the Armed Forces of the United States and all of evidence assembled for review, we continue to note the contention of the appellant in his request for a discharge upgrade of his current Bad Conduct discharge to General Under Honorable Conditions.

The FSM served on active service from November 20, 1990 to May 13, 1993 at which time he was discharged due to conviction by Special Courts Martial.

The FSM requests clemency in the determination of an upgrade of his current discharge. He contends that a change of discharge status is required to obtain partial disability to assist with the treatment of his service incurred disability.

This creates a need for a review of the application of the standard, for the Board to determine that the Applicant’s discharge was improper. The Board will determine which reason for discharge should have been assigned based upon the facts and circumstances before the Board, including the service regulations governing the reasons for discharge at that time, to determine whether relief is warranted. See, SECNAVIST 5420.174 D, Sect. 407, part 3.

As the representative, we ask that consideration be given to equitable relief, as this is a matter that involves a determination whether a discharge should be changed under the equity standards, to include any issue upon which the Applicant submits to the Board’s discretionary authority, under SECNAVIST 5420.174D.

We ask for the Board’s careful and sympathetic consideration of all the evidence of record used in rendering a fair and impartial decision.  These issues do not supersede any issues previously submitted by the Applicant.

Respectfully,”
K_ L. G_

Documentation

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

Twelve pages of Applicant’s civilian medical records
Certification of military service, dtd June 9, 2003

PART II - SUMMARY OF SERVICE

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

	Inactive:  None
	Active:    None

Period of Service Under Review:

Date of Enlistment:  19910128		Date of Discharge:  19930513

Length of Service (years, months, days):

	Active:    01 11 26  (Does not exclude lost time.)
	Inactive:  None

Time Lost During This Period (days):

	Unauthorized absence:  70 days*
	Confinement:		  30 days

Age at Entry:  26

Years Contracted:  8

Education Level:  12				AFQT:  Not found in records

Highest Rate:  AR

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  NA**				Behavior:  NA**		OTA:  NA**

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214):  National Defense Service Medal

* Extracted from DD Form 214, Block 29.
** Not Available

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: 

910520:	Applicant to unauthorized absence at 0500 on 910520.

910605:	Applicant from unauthorized absence at 2015 on 910605 (16 days).

910605:	Applicant on unauthorized absence at 2200-2250 on 910605.

910701:	Applicant to unauthorized absence at 0500 on 910701.

910705:	Applicant from unauthorized absence at 0825on 910705 (3 days).

910710:	NJP for violation of UCMJ, Article 86 (3 specs).
	Specification 1: UA, to wit: SNM was UA from 0500, 20May91 until 2015, 05Jun91.
	Specification 2: UA fm appt place of duty, to wit: SNM was UA from 2200 until 2250 on 05Jun91.
	Specification 3: UA, to wit: SNM was UA from 0500, 01Jul91 until 0825, 05Jul91.
	Award:  Forfeiture of $376 per month for 1 month and correctional custody for 30 days.  No indication of appeal in the record.  [Extracted back pages in the Record of Trial.]

910923:	Applicant to unauthorized absence at 0700 on 910923.

911024:	Applicant declared a deserter.

911103:	Applicant from unauthorized absence at 0900 on 911103 (41 days/surrendered).

911113:	Charges preferred for violation of the Uniform Code of Military Justice (UCMJ) Article 86:  Specification: In that Airman Recruit D_ A_ W_(Applicant), U.S. Naval Reserve, on active duty, Naval Air Technical Training Center, Naval Air Station Memphis, Millington, Tennessee, did, on or about 23 September 1991, without authority, absent himself from his organization, to wit: Naval Air Technical Training Center, Naval Air Station Memphis, located at Millington, Tennessee, and did remain so absent until on or about 3 November 1991.

911113:	Charges referred to special court-martial.

911126:	Applicant to unauthorized absence on 911125  [Extracted verbatim from Record of Trial, page 10 and 11.].

911204:	Special Court Martial [trial dates 911125, 911202, 911204]
	Charge I:  violation of the UCMJ, Article 86.
	Specification:  23 September 1991, without authority, absent himself from his organization, and did remain so absent until on or about 3 November 1991.  Plea:  Not guilty (enter by the military judge on behalf of the accused due to accused’s absence).  Finding: Guilty
	Sentence:  Forfeiture of $376.00 pay per month for two (2) months, to be confined for two (2) months, and to be discharged from the United States Navy with a Bad Conduct discharge.
	CA 920219:  The sentence approved and ordered executed, except for bad conduct discharge.
	SA:  see SSPCMO.
	
911210:	Applicant signed appellate rights statement.

911210:	Applicant signed special power of attorney.

921230:	NMCCMR:  The findings of guilty and sentence, as approved on review, 
	are affirmed.  [On 5 Oct 94, the NMCCMR changed their name to the Navy Marine Corps Court of Criminal Appeals (NMCCCA)]

930513:	SSPCMO:  Article 71c, UCMJ, having been complied with, Bad Conduct discharge ordered executed.

Service Record was missing elements of the Summary of Service.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19930513 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).  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).

The Applicant contends he has Phlebitis, which was acquired during active service. The Applicant requests an upgrade to his discharge so he may receive benefits to help pay for medical bills. 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 medical documentation, 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. 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 has not provided any post-service documentation for the Board to consider.  

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 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 for more than 30 days).

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