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

FOR OFFICIAL USE ONLY

 ex-HR, USNR
Docket No. ND05-01447

Applicant’s Request

The application for discharge review was received on 20050830.  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 personal appearance hearing discharge review before the Board in the Washington National Capital Region.  The Applicant did not designate a representative on the DD Form 293.  In the acknowledgement letter, the Applicant was informed that the Naval Discharge Review Board (NDRB) first conducts a documentary review prior to any personal appearance hearing.   

Decision

A documentary discharge review was conducted in Washington, D.C. on 20060512.  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 as a bad conduct discharge by reason of court-martial conviction.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

No issues were submitted by the Applicant.

Documentation

Only the service and medical records were reviewed.  The Applicant did not provide additional documentation for the Board’s consideration.

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:  19940226		Date of Discharge:  20000725

Length of Service (years, months, days):

	Active:    06  01  02  (Does not exclude lost time.)
	Inactive:  00  03  24

Time Lost During This Period (days):

	Unauthorized absence:  none
	Confinement:		  109 days

Age at Entry:  22

Years Contracted:  8 

Education Level:  18				AFQT:  38

Highest Rate:  HN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.4 (5)		Behavior:  3.4 (5) 		OTA:  3.16

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214):  National Defense Service Medal, Southwest Asia Service Medal, Navy Unit Commendation Award, Armed Forces Service Medal, Pistol Marksman Ribbon, Letter of Appreciation, Sea Service Deployment Ribbon, Good Conduct Medal.

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

BAD CONDUCT/COURT MARTIAL, authority: NAVMILPERSMAN, Article 5815-010 (formerly 3640420).

Chronological Listing of Significant Service Events: 

940623:	Commenced active duty for a period of 36 months.

990324:	Special Court Martial
	Charge I:  violation of the UCMJ, Article 130.
	Specification:  Unlawful entry, on or about 980829, at 751C Foster CT, onboard Naval Weapon Station, Earle, NJ, unlawfully entering a dwelling of V_ M. O_ with intent to commit a criminal offense, to wit: An indecent assault.  Plea: Not Guilty.  Finding: Not Guilty.
	Charge II:  violation of UMCJ, Article 134 (2 Specifications).
	Specification 1:  Committing an indecent assault upon V_ M. O_, a person not his wife. Plea: Guilty.  Finding: Guilty.
	Specification 2:  Willfully and wrongfully exposing himself in an indecent manner to public view, which conduct was of nature to bring discredit upon the Armed Forces. Plea: Guilty.  Finding: Guilty. 
	Charge II:  violation of UMCJ, Article 120.
	Specification: Rape, member did rape V_ M. O_, civilian. Plea:  Not Guilty.  Finding: Not Guilty.  
	Sentence:  Confinement for 4 months, forfeiture of $650 per month for 4 month, reduction to E-1, Bad Conduct discharge.
	CA 990713:  The sentence is approved, and except for that part of the sentence extending to a bad conduct discharge, will be executed.
	
990324:	Joined General Detail Naval District Washington.

990712:	From confinement [Extracted from DD Form 214]. 

990713:	Applicant to appellate leave.

000426:	NMCCCA:  The findings of guilty and sentence, as approved on review, 
		are affirmed.  

000720:	Appellate review complete.

000725:	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 20000725 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 Applicant’s case was considered under the pertinent standards of equity to determine if any factors in this particular case merited clemency.  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, 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 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 22, effective 15 Dec 98 to 21 Aug 2002, Article 5815-010 (formerly 3640420), 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 120 - rape, 130 – housebreaking, 134 – indecent assault. 

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