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

FOR OFFICIAL USE ONLY

ex-MMFR, USN
Docket No. ND06-00792

Applicant’s Request

The application for discharge review was received on 20060523.  The Applicant requests the Discharge Characterization of Service received at the time of discharge be changed to honorable.  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 20070308.  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 character of the discharge shall not change.  The discharge shall remain as a bad conduct discharge by reason of court-martial conviction.

PART I - ISSUES AND DOCUMENTATION

Decisional Issues

None

Documentation

In addition to the service and medical records, the following additional documentation, submitted by the Applicant, was considered:

Applicant’s DD Form 214 (Service 2)

PART II - SUMMARY OF SERVICE

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

	Inactive:  USNR (DEP)	19911106 – 19920824	COG
	Active:    None

Period of Service Under Review:

Date of Enlistment:  19920825		Date of Discharge:  19951128

Length of Service (years, months, days):

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

Time Lost During This Period (days):

	Unauthorized absence:  199 days
	Confinement:		   46 days

Age at Entry:  22

Years Contracted:  4

Education Level:  12				AFQT:  41

Highest Rate:  MMFN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  4.0 (2)			Behavior:  4.0 (2)		OTA:  4.00

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214):  National Defense Service Medal

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

BAD CONDUCT/COURT MARTIAL CONVICTION, authority: NAVMILPERSMAN, Article 3640420.

Chronological Listing of Significant Service Events: 

940202:	Applicant to unauthorized absence at 0700.

940302:	Applicant from unauthorized absence at 1340 (28 days/surrendered).

940309:	NJP for violation of UCMJ, Article 86: Did, on or about 0700, 940202 without proper authority absent himself until on or about 1340, 940302.
	Award:  Forfeiture of $100.00 per month for 2 months, restriction for 45 days, reduction to E-2.  No indication of appeal in the record.

940513:	Applicant to unauthorized absence at 0700.

940610:	Applicant from unauthorized absence at 2158 (28 days/surrendered).

940612:	Applicant to unauthorized absence at 0730.

940711:	Applicant declared a deserter.

941103:	Applicant from unauthorized absence at 0642 (143 days/surrendered).

941103:	Applicant in pretrial confinement.

941114:	Charges preferred for violation of the Uniform Code of Military Justice (UCMJ) Article 86 (2 specs):  (1) In that Machinist’s Mate Fireman Apprentice R_ E. R_(Applicant), U.S. Navy, STEADFAST, on active duty, did, on or about 0700, 940513, without authority, absent himself from his organization to wit: STEADFAST, located at Naval Station, San Diego, California, and did remain so absent until on or about 2158, 940610.
	(2) In that Machinist’s Mate Fireman Apprentice R_ E. R_, U.S. Navy, STEADFAST, on active duty, did, on or about 0730, 940612, without authority, absent himself from his organization, to wit: STEADFAST, located at Naval Station, San Diego, California, and did remain so until on or about 0642, 941103.
	Violation of the UCMJ, Article 92: In that Machinist’s Mate Fireman Apprentice R_ E. R_, U.S. Navy, STEADFAST, on active duty, having knowledge of a lawful order issued by Damage Controlman Chief M_ A. T_ to report for duty at 0730, 940612, an order which it was his duty to obey, did, at STEADFAST, located at Naval Station, San Diego, California, on or about 0730, 940612, fail to obey the same by wrongfully not reporting for duty.

941114:	Applicant informed of charges.

941114:	Charges referred to special court-martial.

941209:	Memorandum of pretrial agreement.

941219:	Applicant from confinement.

941219:	Special Court Martial:
	Charge I:  violation of the UCMJ, Article 86 (2 specifications).
	Specification 1:  Unauthorized absence 0700, 940513 until on or about 2158, 940610.  Plea and Finding: Guilty, excepting the word and figures “13 May,” substituting therefor “16 May”.
	Specification 2:  Unauthorized absence 0730, 940612 until on or about 0642, 941103.  Plea:  Guilty.  Finding:  Guilty.
	Charge II:  violation of UMCJ, Article 92:
	Specification:  Failure to obey a lawful order of a Chief Petty Officer on 0730, 940612.  Plea:  Not guilty.  Finding:  Not Guilty.
	Sentence:  Confinement for 46 days, reduction to E-1, Bad Conduct discharge.
	CA 950223:  The sentence approved and ordered executed, except for bad conduct discharge.
	SA:  see SSPCMO.

950213:	Applicant to appellate leave.

950822:	NMCCA:  The findings of guilty and sentence, as approved on review, 
	are affirmed.

951116:	Appellate review complete.

951128:	SSPCMO:  Article 71c, UCMJ, having been complied with, Bad Conduct discharge ordered executed.

Service Record was missing elements of the Summary of Service.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19951128 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 Board presumed regularity in the conduct of governmental affairs (D).

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 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.  Naval Military Personnel Manual, (NAVPERS 15560C), Change 5, effective 
05 Mar 93 until 02 Oct 96, 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 86 (unauthorized absence for more than 30 days).

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.

D.  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