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

FOR OFFICIAL USE ONLY

ex-FR, USN
Docket No. ND06-00883

Applicant’s Request

The application for discharge review was received on 20060621.  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 20070405.  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

Applicant Issues

The Applicant is requesting a discharge characterization upgrade to uncharacterized.

The Applicant is requesting a RE-code change so that he can join the National Guard.

Documentation

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

Applicant’s DD Form 214 (Member 4)
Applicant’s DD Form 214 (State Director of Veterans Affair 6)
Excerpts from Service Record (2 pgs)
Letter from Applicant’s Wife, not dated
Reference Letter from SGT A_, not dated
Certificate of Baptism, dtd March 28, 2004
Certificate of Marriage, dtd October 17, 2005

PART II - SUMMARY OF SERVICE

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

	Inactive:  USNR (DEP)	20000526 – 20010611	COG
	Active:    None

Period of Service Under Review:

Date of Enlistment:  20010612		Date of Discharge:  20031022

Length of Service (years, months, days):

	Active:    02  03  30  (Does not exclude lost time.)
	Inactive:  None

Time Lost During This Period (days):

	Unauthorized absence:  385 days
	Confinement:		  51 days

Age at Entry:  18 

Years Contracted:  4 

Education Level:  12				AFQT:  32

Highest Rate:  FA

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  NA*			Behavior:  NA*		OTA:  NA*

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

* Not Available

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: 

010827:	Applicant to Unauthorized absence

011015:	Applicant from Unauthorized absence (total of 49 days u/a)

011017:	Applicant to Unauthorized absence

020125:	Applicant from Unauthorized absence (total of 100 days u/a)

020212:	Applicant to Unauthorized absence 

021006:	Applicant from Unauthorized absence (total of 236 days u/a)

021006:	To confinement.

021126:	Special Court Martial [trial dates 021120 & 021126]
	Charge I:  violation of the UCMJ, Article 85, (2 specifications).  Plea: Not Guilty, but Guilty to the lesser-included offense of Article 86.  Finding: Guilty to Article 86 (the greater offense of Article 85 was withdrawn prior to findings). 
	Specification 1:  On or about 020212, absented himself from RTC, Great Lakes, Illinois, and remained so absent in desertion until apprehended on or about 021006 (236 days/A.).  Plea: Not Guilty, but found Guilty to the lesser-included offense of unauthorized absence.  Findings: Guilty to unauthorized absence (the specification was modified to remove the words, “and with intent to remain away therefrom permanently,” and “in desertion” prior to findings). 
	Specification 2: On or about 011017, absented himself from RTC, Great Lakes, Illinois, and remained so absent in desertion until apprehended on or about 020125 (100 days/A.).  Plea: Not Guilty.  Findings: Guilty to unauthorized absence. 
	Charge II:  violation of UMCJ, Article 86.
	Specification:  On or about 010827, absented himself from RTC, Great Lakes, Illinois, and remained so absent until on or about 011015 (49 days/S).  Plea: Guilty.  Findings: Guilty.
	Sentence:  Confinement for 51 days, reduction to E-1, Bad Conduct discharge.
	CA 030206:  The sentence approved and, except for that portion of the sentence extending to a bad conduct discharge, will be executed

021126:	From confinement, restored to full duty. 

030724:	NMCCCA:  The findings of guilty and sentence, as approved on review 
	are affirmed.

031016:	Appellate review complete.

031020:	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 20031022 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 and discharge characterization upgrade to uncharacterized based on board clemency.  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 is requesting a RE-code change so that he can join the National Guard.  Since the NDRB has no jurisdiction over reenlistment, reentry, or reinstatement into the Navy, Marine Corps, or any other of the Armed Forces, NDRB is not authorized to change a reenlistment code.  An unfavorable “RE” code is, in itself, not a bar to reenlistment.  A request for a waiver can be submitted during the processing of a formal application for reenlistment through a recruiter.  Only the Board for Correction of Naval Records (BCNR) can make changes to reenlistment codes.  Relief is not authorized.

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), re-issued October 2002, effective 22 Aug 2002 until 8 Sep 2004, 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).

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