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

ex-AR, USN
Docket No. ND02-00012

Applicant’s Request

The application for discharge review, received 010926, 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 020517.  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

Prior to the documentary discharge review, the applicant introduced no issues as block 8 on the DD Form 293 is blank. 

Documentation

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

Copy of DD Form 214
Copy of DD Form 215
Letter from Applicant
Diagnosis from Mother's Doctor
Letter from Mother's Doctor
Copy of Mothers Consultation Record
Medical Statement from Applicant's Mother (4pgs)
Character Reference Letters (2)

PART II - SUMMARY OF SERVICE

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

	Active:   USN 		None
	Inactive: USNR (DEP)	880302 - 890206	COG

Period of Service Under Review:

Date of Enlistment:  890207		Date of Discharge:  910910

Length of Service (years, months, days):

	Active:    02  01  17
	Inactive:  None

Age at Entry:  18			Years Contracted:  4 (24 months extension)

Education Level:  12			AFQT:  73

Highest Rate:  AR

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  NOB		Behavior:  2.80 (1)		OTA:  2.80

Military Decorations:  None

Unit/Campaign/Service Awards:  None 

Days of Unauthorized Absence:  93 

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:

891213:	NJP for violation of UCMJ, Article 86: UA from appointed place of duty from 0520 until 0743, 891005, Spec 2: UA from appointed place of duty from 0520 until 0642, 891011, Spec 3: UA from appointed place of duty from 0520, 891012 until 1705, 891018(6days/S), Spec 4: UA from appointed place of duty from 0520, 891023 until 2124, 891121(29days/S).
	Award:  Forfeiture of $349.00 pay per month for 1 month, correctional custody for 30 days, reduction to E-1.  No indication of appeal in the record.

891213:	Retention Warning:  Advised of deficiency (Violation of Article 86: UA from appointed place of duty, to wit: SNM was UA from 0520 until 0743 on 891005, Spec 2: UA from appointed place of duty, to wit: SNM was UA from 0520 until 0620 on 891011, Spec 3: UA, to wit: SNM was UA from 0520, 891012 until 1705, 891018, Spec 4: UA, to wit: SNM was UA from 0520, 891023 until 2124, 891121.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 

900109:	That portion of correctional custody remaining on 901009 in this case of AR P____ L. H____, 331-70-0028, is remitted.

900228:	Report of Declaration of Deserter (NAVPERS 1600-3).  Applicant declared a deserter on 900228 having been an unauthorized absentee since 0630, 900129 from NATTC MILLINGTON, TN.

900402:	Report of Return of Deserter.  Applicant apprehended by McCraken County Sheriff Department in Paducah, KY at 1620, 900328. Returned to military control 900328 (1620).  Retained onboard NATTC MILLINGTON, TN for Disciplinary Action/Disposition. .

900521:	Special Court Martial
	Charge I:  violation of the UCMJ, Article 86, (2) Specifications.
	Specification 1:  900125 without authority fail to go at the time prescribed to his appointed place of duty, to wit: Extra Military Instruction BKS S-444, NAS MEMPHIS MILLINGTON, TN, Specification 2: UA 900129 until apprehension on or about 900328(58days/A); Charge II: violation of the UCMJ, Article 91: Failure to obey a lawful order to report to the duty CC for Extra Military Instruction on or about 900125.  
	Findings:  to Charge I and specifications 1 and 2 thereunder, guilty. To Charge II and specification thereunder, guity.
	Sentence:  Conf for 4 months, forfeiture of $482.00 pay per month for 6 months, Bad Conduct discharge.
	CA 900717:  Sentence approved and except for the bad conduct discharge will be duly executed but the execution of that portion thereof adjudging confinement in excess of 90 days is suspended for a period of 12 months from the date sentence is adjudged at which time unless sooner vacated the suspended portion of the confinement will be remitted without further action.

900523:	Applicant waived clemency review.
	
900611:	From confinement; to appellate leave.

910118:	NMCCMR:  The findings of guilty and sentence, as approved on review, are affirmed.

910910:	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 910910 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).

The applicant introduced no decisional issues for consideration by the Board.

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 (C, Part IV).  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 and additional documentation provided for review devoid of any mitigating or extenuating factors sufficient to offset the seriousness of the offenses for which the discharge was awarded.   Relief denied.

The applicant’s discharge characterization accurately reflects his service to his country.  The discharge was proper and equitable.  Normally, to permit relief, an error or injustice must have existed during the period of enlistment in question.  No such error or injustice occurred during the applicant’s enlistment.  Additionally, 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.  However, the NDRB is authorized to consider outstanding post-service factors in the recharacterization of a discharge, 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.  Verifiable proof of any post-service accomplishments must be provided in order for the applicant to claim post-service conduct and behavior as a reason to upgrade a less than Honorable discharge.  Evidence of continuing educational pursuits, an employment record, documentation of community service, certification of non-involvement with civil authorities and proof of his not using drugs, are examples of verifiable documents that should have been provided to receive consideration for relief, based on post-service conduct.  The applicant did not provide sufficient documentation to warrant an upgrade to his discharge.  He is reminded that he remains eligible for a personal appearance hearing, provided an application is received, at the NDRB, within 15 years from the date of his discharge.  The applicant can provide additional documentation to support any claims of post-service accomplishments at that time.  Legal representation at a personal appearance hearing is highly recommended but not required.  Relief denied.

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.  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 DC  20374-5023