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

FOR OFFICIAL USE ONLY

 ex-AR, USN
Docket No. ND05-01012 

Applicant’s Request

The application for discharge review was received on 20050602.  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.  In the acknowledgement letter, the Applicant was informed that he was approaching the 15-year point for review by this Board and it was suggested that he attend a personal appearance hearing in the Washington D.C. area.  The Applicant did not respond.  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: 

“Please upgrade my discharge to General under Honorable Conditions.  I am asking for clemency.  I have turned my life around and I am a productive citizen.  I am requesting the upgrade because I would like to rid myself of this blemish on my record.”

Documentation

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

DD Form 149
Employment Reference ltr, dtd April 22, 2005
Reference ltr from Pastor B_ R_, undated
Police Record Check dtd April 26, 2005, unsigned, unsealed
Applicant’s DD Form 214

PART II - SUMMARY OF SERVICE

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

	Inactive:  USNR (DEP)	19860331 – 19860803		COG
	Active:    None

Period of Service Under Review:

Date of Enlistment:  19860804		Date of Discharge:  19900713

Length of Service (years, months, days):

	Active:    03  11  09  (Does not exclude lost time.)
	Inactive:  None

Time Lost During This Period (days):  

	Unauthorized absence:	None
	Confinement:			114 days

Age at Entry:  19 

Years Contracted:  4 

Education Level:  12				AFQT:  31

Highest Rate:  AN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.0 (4) 		Behavior:  3.1 (4) 		OTA:  3.25 

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214):  Coast Guard Meritorious Unit Commendation (2) Sea Service Deployment Ribbon (2), Battle “E” Ribbon; USCG Special Operations Service Ribbon.

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: 

881220:	Retention Warning:  Advised of deficiency (Applicant displayed a grossly indifferent attitude towards his just financial obligations.  On three separate occasions he failed to pay debts in a proper and timely manner.  Most recently Applicant failed to pay a $1296.96 car rental bill.  Applicant’s financially irresponsible behavior reflects discredit upon the naval service.) notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

890530:	Special Court Martial [trial date 890530]
Summary of Offenses:
Charge I:  Violation of UCMJ Article 121 (2 Specifications):
Did, onboard NAS Jacksonville, FL, on 890116 and 890117, steal $300.00 and $200.00 respectively, in U.S. currency, the property of Jax Navy Federal Credit Union, Jacksonville, FL.
Charge II:  Violation of UCMJ Article 123a (32 Specifcations):
Did, onboard NAS Sigonella, Sicily, between 881130 and 881230, with intent to defraud and for the procurement of lawful currency and things of value, wrongfully and unlawfully utter certain checks upon the Navy Federal Credit Union, in the amounts of $26.85 to #300.00, totaling $2,684.00, consisting of 6 checks to the Disbursing Officer, Personnel Support Detachment, Sigonella, Sicily, 25 checks to Navy Exchange 210-024 and 1 check to Single MWR Fund, then knowing that he, the maker thereof, did not or would not have sufficient funds in or credit with such banks for the payment of said checks in full upon their presentment.
Findings:  In accordance with the Applicant’s pleas, to all of the Charges and Specifications thereunder, Guilty.
Sentence:  To confinement for 6 months, to pay the United States a fine of $2,796 subject to a credit for all restitution paid to JAX Navy Federal Credit Union and the Navy Federal Credit Union, Vienna, Virginia, before the date of the Convening Authority’s action; to be reduced to the grade of paygrade E-1and to be discharged from the naval service with a bad conduct discharge.
	CA 891114:  The sentence is approved and, except for bad conduct discharge, will be executed, but that part of the sentence adjudging confinement in excess of four months in suspended for a period of 12 months from the date the sentence was adjudged at which time, unless sooner vacated, the suspended portion will be remitted without further action.  That part of the sentence adjudging fines will be suspended for a period of 12 months from the date the sentence was adjudged as full restitution has been made by the accused.  The sentence was approved and partially suspended is in accordance with the terms of the pretrial agreement.
	
890530:	Joined Naval Station, Norfolk, Virginia, for confinement.

890911:	From confinement, restored to full duty. 

890921:	Applicant to appellate leave.

900307:	NC&PB clemency not granted; restoration denied.

900330:	NMCCMR:  The findings of guilty and sentence, as approved on review, are affirmed.

900618:	Appellate review complete.

900713:	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 19900713 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).

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 not warranted.  The Applicant was convicted of two specifications of larceny and 32 specifications of uttering bad checks.  In sum, the Applicant’s larceny and bad checks netted him a total of $3,296.00 over a period of several months.  Furthermore, the Applicant’s misconduct is aggravated by the fact that he had previously received a counseling/retention warning for failing to pay a $1,296.96 car rental bill.  The Applicant’s conduct, which forms the primary basis for determining the character of his service, reflects his willful failure to meet the requirements of his contract with the U.S. Navy.  Such conduct falls far short of that expected of a member of the U.S. military and does not meet the requirements for an upgrade of his characterization of service.  The Board concluded unanimously that clemency is not warranted.

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 could 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.  The Board received and considered all of the Applicant’s submissions, including his employment reference letter, his character reference letter, and his criminal records check.  After careful consideration, the Board concluded the Applicant’s post-service achievements have been insufficient to mitigate his misconduct while in the Naval service.  Relief denied.

The NDRB has no authority to provide additional review of this case since Applicant’s discharge occurred more than 15 years ago.  The Applicant may, however, petition the Board for Correction of Naval Records (BCNR), 2 Navy Annex, Washington, DC 20370-5100, concerning a change in the characterization of naval service, if he desires further review of his case.

Pertinent Regulation/Law (at time of discharge)

A.  The Naval Military Personnel Manual, (NAVPERS 15560A), Change 9, effective 14 Dec 89 until 14 Aug 91, 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 121, larceny or Article 123a, making, drawing, or uttering check, draft, or order without sufficient funds.

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.

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