Author: CAP
Last saved by: Department of the Navy
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Docket No. ND01-00920

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

 ex-SR, USNR
Docket No. ND01-00920

Applicant’s Request

The application for discharge review, received 010709, requested that the characterization of service on the discharge be changed to honorable.  The applicant requested a documentary record discharge review.  The applicant did not list any representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 020130.  After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, NDRB discerned no impropriety or inequity in the characterization of the applicant’s service.  The Board’s vote was unanimous that the character of the discharge shall not change.  The discharge shall remain: BAD CONDUCT/Convicted by special court martial, authority: NAVMILPERSMAN, Article 3640420.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

1.  I believe my discharged should be changed from OTH to honorable, because I made a few bad decisions at 19 yrs old.  The choices I made were wrong ones, but I made them for my family.  I wish I could change the mistakes I made but I can't.  I spent time in the brig for my bad decision.  But I'm still paying the price I would just like to get on with my life. My bad time is listed at 269 days.  That is also incorrect I would like to know the real number of days that were bad days,

Documentation

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

None

PART II - SUMMARY OF SERVICE

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

	Active:   USN			None
	Inactive: USNR (DEP)	None

Period of Service Under Review:

Date of Enlistment:  840921		Date of Discharge:  870623

Length of Service (years, months, days):

	Active:    01  06  08
	Inactive:  00  09  26

Age at Entry:  17			Years Contracted:  8 

Education Level:  12			AFQT:  72

Highest Rate:  SA

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  NMA		Behavior:  NMA		OTA:  NMA

Military Decorations:  None

Unit/Campaign/Service Awards:  None 

Days of Unauthorized Absence:  100 

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:

850625:	Voluntarily returned to Active Duty for 24 months.

850809:	Report of Declaration of Deserter (NAVPERS 1600-3).  Applicant declared a deserter on 850808 having been an unauthorized absentee since 0645, 850708 from USS BELKNAP.

850830:	NJP for violation of UCMJ, Article 86: (2 Specifications); Spec 1: Unauthorized absence 850707 to 850806(29days/S); Spec 2: Unauthorized absence 850807 to 850813(6days/R); violation of UCMJ Article 92: Failure to obey a lawful written order.
	Award:  Forfeiture of $310.00 per month for 2 months, restriction and extra duty for 45 days, reduction to E-1.  No indication of appeal in the record.

851119:	Report of Declaration of Deserter (NAVPERS 1600-3).  Applicant declared a deserter on 851119 having been an unauthorized absentee since 0730, 851019 from USS BELKNAP.

860102:	Pretrial Restraint: 860102 to 860106 at Brig, Philadephia, PA.

860106:	Pretrial Restraint: 860106 to 860214 at Brig, NavSta, NORVA.

860214:	Special Court Martial 
	Charge I:  violation of the UCMJ, Article 86:Unauthorized absence 851019 – 860102, [65 days/A.]
	Findings:  to Charge I and specifications thereunder, guilty.
	Sentence:  CHL for 75 days, forfeiture of $400.00 pay per month for 2 months, Bad Conduct discharge.
	CA 860508:  Sentence approved and ordered executed, except for bad conduct discharge.

860630:	NMCCMR:  The findings of guilty and sentence, as approved on review, are affirmed.

870409:	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 870623 with bad conduct due to convicted by special court martial (A).  The Board presumed regularity in the conduct of governmental affairs (B).  After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, the Board found that the discharge was proper and equitable (C and D).

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.  The applicant's case was considered under the pertinent standards of equity to determine if any factors in this particular case merited clemency.  The NDRB found the applicant’s service record devoid of any mitigating or extenuating factors sufficient to offset the seriousness of the offenses for which the discharge was awarded.  The applicant failed to provide documentary evidence to demonstrate his sobriety, positive community service, employment history, and clean police record since discharge.  Relief based on clemency is not warranted.

The applicant remains eligible for a personal appearance hearing provided the application is received within 15 years from the date of discharge.  Representation at personal appearance hearing is recommended.

Pertinent Regulation/Law (at time of discharge)

A.  The Naval Military Personnel Manual, (NAVPERS 15560A), effective 15 Jun 87 until 13 Dec 89, Article 3640420, DISCHARGE OF ENLISTED PERSONNEL ADJUDGED BY SENTENCE OF COURT‑MARTIAL.

B.  Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 2, AUTHORITY/POLICY FOR DEPARTMENTAL DISCHARGE REVIEW.  

C.  Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 9, paragraph 9.2, PROPRIETY OF THE DISCHARGE.

D.  Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 9, paragraph 9.3, EQUITY OF THE DISCHARGE.

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 "afls10.jag.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:

		Naval Council of Personnel Boards
		Attn:  Naval Discharge Review Board
		720 Kennon Street SE Rm 309
		Washington Navy Yard D.C.  20374-5023

The remaining portion of this document is divided into 4 Parts: Part I - Applicant’s Issues and Documentation, Part II - Summary of Service, Part III – Rationale for Decision and Pertinent Regulation/Law, Part IV - Information for the Applicant.
INDEX:   A6800/A9301/A9231/A9105/A9221