Author: CAP
Last saved by: Department of the Navy
Company: NCPB

Docket No. ND02-00855

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

 ex-AOAR, USNR(TAR)
Docket No. ND02-00855

Applicant’s Request

The application for discharge review, received 020603, requested that the characterization of service on the discharge be changed to honorable.  The Applicant requested a personal appearance hearing before the board in the Washington National Capital Region.  The Applicant listed the American Legion as the representative on the DD Form 293.  In the acknowledgement letter to the Applicant, the Applicant was informed that the Naval Discharge Review Board (NDRB) first conducts a documentary review prior to any personal appearance hearing.

Decision

A documentary discharge review was conducted in Washington, D.C. on 030410.  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, as submitted

1.  (Equity Issue)  Pursuant to 10 USC 874 (b) (UCMJ, Article 74) and in accordance with SECNAVINST 5420.174C, enclosure (1), paragraphs 2.24 and 9.3, this former member requests the Board’s clemency relief with up-grade of her characterization of service to under honorable conditions on the basis of her post-service conduct. 

Documentation

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

Applicant's DD Form 214
Applicant's daughter certificate of birth
Examination results
Certificate of completion dated July 14, 2000
Character reference dated February 11, 2002
Job/character reference dated October 15, 2001
Character reference dated November 11, 2001
Job/character reference dated November 6, 2001
Character reference from Applicant's mother dated January 30, 2002
Character reference dated January 10, 2002
Character reference from Applicant's father dated January 39, 2002

PART II - SUMMARY OF SERVICE

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

	Inactive: None
	Active:   None

Period of Service Under Review:

Date of Enlistment:  950221			Date of Discharge:  980206

Length of Service (years, months, days):

	Active:    02  04  12
	Inactive:  00  07  03

Age at Entry:  17 Parental Consent		Years Contracted:  8

Education Level:  12				AFQT:  53

Highest Rate:  AOAN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  NMF				Behavior:  NMF		OTA:  NMF

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM

Days of Unauthorized Absence:  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:

950926:	You are being retained in the Naval service, despite your fraudulent induction as evidenced by your failure to disclose required basic enlistment eligibility information.  This decision is based on the information you provided the Recruit Quality Assurance Interviewer and if it is found that additional information has not been disclosed, this waiver is void and you could be subject to other judicial or administrative proceedings, ie., shoplifting, 9/94, Clarksville, TN, 6 months unsupervised probation.  However, any further deficiencies in performance or conduct may result in processing for administrative separation.

960821:	Applicant to pretrial confinement.

960925:	Applicant released from confinement.

960926:	Special Court Martial
	Charge I: violation of the UCMJ, Article 80:
	Specification: Attempted larceny on 960522.
	Charge II: violation of the UCMJ, Article 81 (3 specs):
	Specification 1: Conspiracy to commit larceny on 960429, to wit:  gasoline - $17.17.
	Specification 2: Conspiracy to commit larceny on 960429, to wit: charged items at Walmart on stolen Visa credit card - $865.32).
	Specification 3: Conspiracy to commit larceny on 960518, to wit: forged name on check to get cash - $537.25).
	Charge III: violation of the UCMJ, Article 121 (21 specs):
	Specification 1: Larceny of Visa credit card on 960428.
	Specification 2: Larceny of gasoline on 960428 ($17.17).
	Specification 3: Larceny of merchandise from Walmart on 960429 ($865.32).
	Specification 4: Larceny of driver's license and ATM card on Mar-May 1996.
	Specification 5: Larceny of driver's license on Mar-May 1996.
	Specification 6: Larceny of military ID card on Mar-May 1996.
	Specification 7: Larceny of military ID card on Mar-May 1996.
	Specification 8: Larceny of blank checks (3) on 960518.
	Specification 9: Larceny of currency on 960518 ($537.25).
	Specification 10: Larceny of ring on May96.
	Specification 11: Larceny of watch 960629 ($145.00).
	Specification 12: Larceny of ring on May96 ($150.00).
	Specification 13: Larceny of jacket on Jul96 ($65.00).
	Specification 14: Larceny of bracelets on Aug96 ($115.00).
	Specification 15: Larceny of massager on Aug96 ($45.00).
	Specification 16: Larceny of rings and earrings on 960814 ($300.00).
	Specification 17: Larceny of jewelry box on 960814 ($25.00).
	Specification 18: Larceny of 4329 LOTTO tickets on 960817 ($4,557.00).
	Specification 19: Larceny of blank checks (128) on 960817.
	Specification 20: Larceny of 11 money orders on 960817.
	Specification 21: Larceny of 12 blow pops on 960817.
	Charge IV: violation of the UCMJ, Article 123 (3 specs):
	Specification 1: Forgery of signature on checks on March - May 1996.
	Specification 2: Forgery of signature on checks on 960518.
	Specification 3: Forgery of signature on checks on 960522
	Charge V: violation of the UCMJ, Article 130:
	Specification: Unlawful entry with intent to commit offense on 960817.
	Charge VI: violation of the UCMJ, Article 134:
	Specification: Break restriction on 960817.
	Findings: to Charge I, II specifications 1-3, III specifications 1-9, 14, 16, and 18, IV 1-3, V, VI, guilty.
	Findings to Charge III specifications 10-13, 15, 17, 19-21, withdrawn.
	Sentence: CHL for 5 months, forfeiture of $580 per month for 6 months, reduction to AOAR, Bad Conduct discharge.
	CA 961230: Sentence approved and ordered executed, except for bad conduct discharge.
	SA: see SSPCMO.

960926:	Applicant to confinement.

961223:	Applicant released from confinement; to appellate leave.

971118:	NMCCCA:  The findings of guilty and sentence, as approved on review, are affirmed. 

980206:	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 980206 with a bad conduct discharge due to being convicted by a 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).

In response to the Applicant's issue of post-service conduct, the following is provided for her edification.  There is no law or regulation that provides for an unfavorable discharge to be upgraded based solely on the passage of time or good conduct in the civilian life subsequent to leaving the service.  However, the NDRB is authorized to consider post-service factors in the recharacterization of a discharge.  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 may be considered.  Verifiable proof of 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, and certification of non-involvement with civil authorities are examples of verifiable documents that may be provided to receive consideration for relief based on post-service conduct.  While the Board acknowledged the Applicant’s efforts to establish herself in the community, the Board did not feel that her post-service accomplishments were of such quality as to consider an upgrade at this time.  Relief denied.

The Applicant is reminded that she remains eligible for a personal appearance hearing, provided an application is received at the NDRB within 15 years from the date of her 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 14, effective 
03 Oct 96 until 14 Dec 98, 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 "afls14.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

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/A9105/A9221