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

FOR OFFICIAL USE ONLY

ex-MMFR, USN
Docket No. ND06-00734

Applicant’s Request

The application for discharge review was received on 20060509.  The Applicant requests the Discharge Characterization of Service received at the time of discharge be changed to honorable.  The Applicant requests a personal appearance hearing before the Board in the Washington, D.C. Metropolitan area.  The Applicant did not designate a representative on the DD Form 293.  Subsequent to the application, the Applicant obtained representation by the American Legion.

Decision

A personal hearing discharge review was conducted in Washington, D.C. on 20070215.  After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, the Board determined that clemency was warranted in the characterization of the Applicant’s service.  The Board’s vote was 4 to 1 that the discharge shall change to GENERAL (UNDER HONORABLE CONDITIONS) but the reason for discharge shall remain by reason of court-martial conviction.

The NDRB did note administrative error(s) on the original DD Form 214.  Block 29, Date Of Time Lost During This Period, should read:  “88DEC15 TO 90MAY30 , 90MAY31 TO 90JUL19”  The Commander, Navy Personnel Command, Millington, TN, will be notified, recommending the DD Form 214 be corrected or reissued, as appropriate.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Issues submitted by Applicant and representative: The following issue supersedes DD Form 293 filed 060509.

Pursuant to 10 USC 874 (b) (UCMJ, Article 74) and in accordance with SECNAVINST 5420.174D, Part IV, Paragraph 403 m (7), we request the Board’s clemency relief with an up-grade of this former member’s characterization of service to Honorable.

Documentation

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

Applicant’s DD Form 214  (Service 7) (2 copies)
DD Form 215 (2 copies)
Applicant’s summary of post service achievements
NOVA Southeastern University Transcript (Master Degree Program)
Florida International University Transcript (Bachelor Degree Program)
National Black MBA Association Member certification letter
Alpha Phi Alpha Fraternity certificate
Dade Community Foundation Scholarship Award
Heart and Souls Award Certificate for contribution to the center for Undergraduate Studies
Character reference letter from Sacramento Metropolitan Arts Commission
Applicant’s letter to Secretary of the Navy Council of Review Boards dtd 280107
Character reference letter from Tawra L. Staten dtd 160497

PART II - SUMMARY OF SERVICE

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

	Inactive:  USNR (DEP)	19860919 – 19870802	COG
	Active:    None

Period of Service Under Review:

Date of Enlistment:  19870803		Date of Discharge:  19910903

Length of Service (years, months, days):

	Active:    04  01  01  (Does not exclude lost time.)
	Inactive:  None

Time Lost During This Period (days):  

	Unauthorized absence:  530 days
	Confinement:		  49 days

Age at Entry:  18 

Years Contracted:  4 (18 month extension) 

Education Level:  12				AFQT:  95

Highest Rate:  MM3

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.4 (1)		Behavior:  3.0 (1) 			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/Convicted by special court martial, authority: NAVMILPERSMAN, Article 3640420.

Chronological Listing of Significant Service Events: 

880629:	NJP for violation of UCMJ, Article 107:  Intent to deceive by falsifying the Night Study Log on 880619.
Award reduction to E-3.  No indication of appeal in the record.

880705	Applicant transferred to USS KALAMAZOO (AOR 6)

880802	Applicant arrived at USS KALAMAZOO (AOR 6)

881215:	Applicant to Unauthorized absence, 2345.

881230:	Missed ship’s movement from Virginia to Mediterranean Sea.

890119:	Declared deserter.

900529:	Returned to military control at 1440 after being apprehended by civil authorities in Winter Park, FL.

900529:	Applicant transferred to TPU NAS Jacksonville, FL.

900531:	Applicant to confinement on 900531

900719:	Applicant from confinement on 900719

900821:	Special Court Martial
	Charge:  violation of the UCMJ, Article 86: UA 881215-900529 (530 days/Apprehended).
	Finding: to Charge and the specification thereunder, guilty.
	Sentence: Forfeiture of $482.00 pay per month for 3 months, reduction to E-1, and a BCD.
	CA action 900821.  Sentence approved and ordered executed excepting the BCD, will be duly executed.  IAW the terms of the pretrial agreement. The confinement in excess of 75 days shall be suspended for period of 6 months from the date the sentence was adjudged, at which time, unless sooner vacated, the suspended portion shall be automatically remitted without further action.  
	
900823:	Requested appellate leave until finally discharged.

901220:	Joined NAVAPLVACT Washington, DC.

910122:	NMCCMR:  Portion of sentence that adjudged a fine of $1500.99 disapproved, the findings of guilty and remainder of the sentence are affirmed.

910208:	NC&PB clemency not granted; restoration denied.

910903:	SSPCMO:  Article 71c, UCMJ, having been complied with, BCD ordered executed.

971201:	NDRB documentary record review Docket Number ND97-00824 conducted.  Determination: discharge proper and equitable; relief not warranted.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19910903 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 characterization adjudged at the time of discharge was proper and equitable.  However, based on significant post service accomplishments and testimony, the Applicant’s appeal was sufficient to merit clemency (C) with an upgrade in characterization to general. 

The Applicant requested the Board’s clemency relief with an up-grade of his current discharge characterization of service to honorable.  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 post service accomplishments, the Board determined that clemency was warranted in the characterization of discharge.  The Applicant, at his personal appearance hearing on 20070215, demonstrated complete remorse for his actions.  The Applicant demonstrated to the board his dedication and resolve in becoming a better and more productive member of society.  His testimony spoke volumes and was backed up by substantial post service accomplishment.  Although the Applicant clearly projected a noticeable change in character and maturity, from his time on active duty, an upgrade to honorable was still unwarranted.  Clemency upgrade to honorable is denied.

The Applicant’s representative submitted the following as issue: (EQUITY ISSUE) Pursuant to 10 USC 874 (b) (UCMJ, Article 74) and in accordance with SECNAVINST 5420.174D, Part IV, Paragraph 403 m (7), we request the Board’s clemency relief with an up-grade of this former member’s characterization of service to honorable.  The NDRB is authorized to consider post-service factors in the recharacterization of a discharge (C, Part IV).  However, 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 the service.  Normally, to permit relief, a procedural impropriety or inequity must have been found to have existed during the period of enlistment in question.  Outstanding post-service conduct, to the extent that such matters provide a basis for a more thorough understanding of the Applicant’s performance and conduct during the period of service under review, is considered.  The Applicant provided several letters of recommendation as documentation of post-service accomplishments as well as substantial educational accomplishments.  The Applicant submitted credible evidence of sustained post service accomplishment and presented himself as honest and forthright.  The Applicant’s post service documentation combined with his personal appearance testimony illustrate he has made significant positive change.  The Board determined that the documentation and presentation provided by the Applicant at his personal appearance hearing does mitigate the misconduct that resulted in the characterization of discharge.  Therefore, clemency is granted with an upgrade to general in the characterization of discharge.

The Applicant’s case was considered under the pertinent standards of equity to determine if any factors in this particular case merited clemency.  Although the NDRB found the evidence of post-service record did contain sufficient mitigating or extenuating factors to offset the seriousness of the offenses for which the characterization for discharge was awarded, it maintained the narrative reason for discharge, convicted by special court-martial, is most appropriate.  Relief denied.

The following is provided for the edification of the Applicant.  The Applicant has exhausted his opportunities for review by the NDRB.  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.  Naval Military Personnel Manual, (NAVPERS 15560C), effective 15 Aug 91 until 04 Mar 93, 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, Articles 86, (unauthorized absence for more than 30 days), 107 (False official statements).

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 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