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

FOR OFFICIAL USE ONLY

  ex-FR, USNR
Docket No. ND05-01512

Applicant’s Request

The application for discharge review was received on 20050907.  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 20060619.  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

Applicant’s issues, as stated on the application: 

“I have dealt with legal negatives of everything that requested for me to do.  I have obtained a degree & made a life for my self & family.  I have fought for my country & slain many individuals for not being recognized is my fault.  Should hold for striking a superior officer of ___ negligence due to whom I was.  Therefore I shall I am asking for my rights as an individual _ being United States citizen.  To vote, to own gov. prop.  To work for gov. to own a license to hunt.  My limits as for working a civilian job is limited. No I cannot work at any gov affiliation job as far as post office McDonald, or any other gov affiliated job for gov. ”

Documentation

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

DD Form 149

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:  19870924		Date of Discharge:  20010205

Length of Service (years, months, days):

	Active:    13 04 12  (Does not exclude lost time.)
	Inactive:  00 04 16

Time Lost During This Period (days):

	Unauthorized absence:  3827 days
	Confinement:		  54 days

Age at Entry:  20

Years Contracted:  8 

Education Level:  12				AFQT:  27

Highest Rate:  FN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.4 (1) 		Behavior:  3.6 (1) 		OTA:  3.60 

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214):  None

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: 

870908:	USN Alcohol and Drug Abuse Screening Certificate: Applicant acknowledged that he has used marijuana in the past, has been convicted of an alcohol related offense.

880209:	Commenced active duty for a period of 36 months.

890505:	NJP for violation of UCMJ, Article 86:  Absence without leave, in that FN M_, on active duty, did on or about 0530, 890412, without authority absent himself from his unit, to wit: MINEDIV 125, locates at Naval Station, Charleston SC, and did remain so absent until 0815, 890412.
Violation of UCMJ, Article 87: Missing movement, in that FN M_, on active duty, assigned to LCU-1641, Mine Division 125, did on or about 0530, 890412, through neglect miss movement of LCU-1641, with which he was required in the course of duty to move.
	Award:  Restriction to Mine Division 125 for 30 days.  No indication of appeal in the record.

890607:	NJP for violation of UCMJ, Article 92 (2 specs):  Failure to obey a lawful order.
	Violation of UCMJ, Article 86: Absence without leave 0615, 890528 Restricted Personnel Muster.
Violation of OPNAVINST 5510.1H: Visit control introducing an unauthorized person (female) onboard LCU-1641.
	Award:  Forfeiture of $407 pay per month for 1 month, correctional custody for 30 days, reduction to next inferior pay grade (suspended for 6 months).  No indication of appeal in the record.

900403:	Special Court-Martial.
	Charge:  violation of the UCMJ, Article 112a.
	Specification: Wrongful use of cocaine on or about 900116.  Plea: Not found in record.  Findings: Not found in record. 
	Sentence: Confinement for 75 days, forfeiture of $250 pay per month for 4 months, reduced to E-1.
	CA action 900604:  Not found in record.

900403:	To confinement.

900604:	From confinement, restored to full duty.

900607:	UA from TRANSITPERSU Charleston, sc since 0730, 900607.  Apprehended 0205, 990203 by Union County Sheriff’s Dept, Monroe, NC for driving without license and giving false information.  SNM lodged at Union County Jail, Monroe, NC.  SNM returned to military control 1105, 990223.  Civilian Charges resolved.  SNM released to NACIC GLAKES, IL and transferred with escort and DOB TPU NORVA 1325, 990226.  Restored to full duty status 1105, 990223.

900709:	Report of Declaration of Deserter (NAVPERS 1600-3).  Applicant declared a deserter on 900709 having been an unauthorized absentee since 0730, 900607 from TRANSITPERSU Charleston, SC.

990223:	Pre-trial confinement from 990223 to 990409.

990409:	Special Court Martial.
	Charge I:  violation of the UCMJ, Article 86.
	Specification:  In that Fireman Recruit A_ J. M_, U.S. Naval Reserve, Transient Personnel Unit, Norfolk, Virginia, on active duty, did, on or about 900607, without authority, absent himself from his unit, to wit: Transient Personnel Unit, Charleston, South Carolina and did remain so absent until he was apprehended on or about 990223.  Plea: Guilty, excepting the words “he was apprehended”; to the excepted words, Not Guilty; to the Charge as excepted, Guilty; to the specification as excepted, Guilty.  Findings: Guilty, excepting the language “he was apprehended”. Of the excepted language, Not Guilty, of the specification as excepted, Guilty.
	Sentence:  Confinement for 65 days, and to be discharge from the naval service with a bad conduct discharge. CA 990913:  The sentence is approved and, except for the part of the sentence extending to a bad conduct discharge, will be executed.  Per the decision rendered in U.S. v. Allen, 17 MJ 126 (CMA 1984), the accused shall be credited with 46 days of confinement against the sentence adjudged.
	
990409:	Joined Naval Brig, Naval Station Norfolk, Norfolk Virginia, for confinement.

990417:	From confinement, restored to full duty. 

000925:	NMCCCA:  The findings of guilty and sentence, as approved on review, 
	are affirmed.  

010109:	Appellate review complete.

010205:	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 in absentia on 20010205 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 is requesting an upgrade based on his rights as a US citizen. 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, which included two special court martials for violation of Articles 86 and 112a, and two NJP’s for violation of Articles 86 and 92, 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 states he wants an upgrade “so he may vote, own government, property, work for the government, and own a license to hunt”. The Applicant also states opportunities for working civilian jobs are limited. The Veterans Administration determines eligibility for post-service benefits not the Naval Discharge Review Board.  There is no requirement or law that grants recharacterization solely on the issue of obtaining Veterans' benefits and this issue does not serve to provide a foundation upon which the Board can grant relief.  Additionally, the Board has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities.  Regulations limit the Board’s review to a determination on the propriety and equity of the discharge
.  
The Applicant states “I have obtained a degree & made a life for my self & family”.  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, credible evidence of a substance free lifestyle 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.  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 86 (unauthorized absence for more than 30 days), Article 87(missing movement), and 112a (wrongful use of a controlled substance).

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