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

FOR OFFICIAL USE ONLY

ex-ETSR, USN
Docket No. ND06-00707

Applicant’s Request

The application for discharge review was received on 20060502.  The Applicant requests the Discharge Characterization of Service received at the time of discharge be changed to uncharacterized.  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 20070301.  After a thorough review of the records, supporting documents, facts, and circumstances unique to this case the Board determined that clemency was not warranted and that the characterization of discharge was appropriate.  The Board’s vote was unanimous that the discharge shall remain Bad Conduct Discharge by reason of court-martial conviction.

PART I - ISSUES AND DOCUMENTATION

Decisional Issues

	No decisional issues.

Documentation

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

Applicant’s DD Form 214 (Member 1)
Applicant’s DD Form 214 (Member 4)
Applicant’s DD Form 214 (State of Director of Veterans Affairs-6)
Excepts from service record (6 pgs)
Reference Listing 

PART II - SUMMARY OF SERVICE

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

	Inactive:  USNR (DEP)	20010330 – 20010521		COG
	Active:    None

Period of Service Under Review:

Date of Enlistment:  20010522		Date of Discharge:  20050209

Length of Service (years, months, days):

	Active:    03  06  04  (Does not exclude lost time.)
	Inactive:  None

Time Lost During This Period (days):  

	Unauthorized absence:  None
	Confinement:		  75 days

Age at Entry:  19

Years Contracted:  4 (24-month extension)

Education Level:  12				AFQT:  80

Highest Rate:  ET3

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.0			Behavior:  3.0		OTA:  3.00

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.

Chronological Listing of Significant Service Events: 

011114:	NJP for violation of UCMJ, Article 92 (2 specs): Wrongfully cheating on an exam and wrongfully wearing a tongue.
Award:  Forfeiture of $283.00 pay per month for 1 month, restriction and extra duty for 14 days.  No indication of appeal in the record.

011114:	Retention Warning:  Advised of deficiency (violation of UCMJ Article(s) 92, fail to obey), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

030605:	Pretrial confinement from 030605 to 030812 (68 days of pretrial credit). 

030812:	Special Court Martial
	Charge I:  violation of the UCMJ, Article 120.
	Specification: Did on or about 030110, commit the offense of carnal knowledge with K_ K. C_.  Plea: Guilty.   Finding: Guilty.
	Charge II:  violation of UMCJ, Article 134 (2 specifications).
	Specification 1: Did on or about 030110, commit an indecent act with K_ K. C_, a female under 16 years of age.  Plea: Guilty.   Finding: Guilty.
Specification 2: Did on or about 0212, commit an indecent act with J_ D_, a female under 16 years of age.  Plea: Guilty.   Finding: Guilty.
	Sentence:  Confinement for 90 days, forfeiture of $750.00 pay per month for 3 months, reduction to E-1, Bad Conduct discharge.
	CA 031120:  The sentence was approved and, except for the part of the sentence extending to bad conduct discharge, will be executed.
	
030903:	Applicant to appellate leave.

040319:	NMCCCA:  The findings and sentence, as approved on review, were affirmed.

040815:	Appellate review completed.

040818:	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 20050209 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).  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 (B).  The Board presumed regularity in the conduct of governmental affairs (C).  

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.  The Applicant’s service was marred nonjudicial punishment proceedings on 20011114 and a special court-martial conviction on 20030812 for violations of UCMJ Article 92 Failure to obey order or regulation (2 specifications); Article 120 Carnal knowledge; and Article 134 Indecent act (2 specifications).  After a thorough review of the Applicant’s records and issues submitted, 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 is advised that the Board has no jurisdiction over reenlistment, reentry, or reinstatement into any of the Armed Forces.  Only the Board for Correction of Naval Records (BCNR) can make changes to reenlistment codes.  A request for a waiver can be submitted during the processing of a formal application for reenlistment through a recruiter.  Regulations limit the Board’s review to a determination of the propriety and equity of the discharge.  Since these issues do not provide a foundation upon which the Board can grant relief, relief on this basis is not warranted.

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 post-service accomplishments or any other evidence related to the discharge at that time.  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.  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.

C.  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 Instruction 1332.28, you may submit a complaint in accordance with Enclosure (5) of that Instruction.  You should read Enclosure (5) of the Instruction 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 Instruction 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