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Docket No. ND02-00861

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

 ex-AR, USNR
Docket No. ND02-00861

Applicant’s Request

The application for discharge review, received 020603, requested that the characterization of service on the discharge be changed to general (under honorable conditions).  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 030228.  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/COURT MARTIAL CONVICTION, authority: NAVMILPERSMAN, Article 3640420.

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PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as submitted

1.  To whom it may concern.

I have been out of the Navy since Sept 28-93 and have my family as stated in my record.  I been trying to get a house because of B.C I can't.  Please I have been going to church also.  I was UA for 60 days and my wife was sick due to having a baby and I gave all the reason and nothing was recorded.  Please upgrade my discharge to OHT or honorable.

Documentation

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

Copy of DD Form 214

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	None
	Active:   USN 			None

Period of Service Under Review:

Date of Enlistment:  871106		Date of Discharge:  930729

Length of Service (years, months, days):

	Active:    05  05  26 (does not exclude lost time)
	Inactive:  00  02  27

Age at Entry:  21			Years Contracted:  8 

Education Level:  12			AFQT:  30

Highest Rate:  AR

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  NFIR		Behavior:  NFIR		OTA:  NFIR

Military Decorations:  None

Unit/Campaign/Service Awards:  None
Days of Unauthorized Absence:  1284: (3)880723-880725; (19)880904-880922
 	(84)890108-890401; (1178)890410-920701

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:

880203:	Ordered to active duty for 36 months under the Active Mariner program.

880516:	NJP for violation of UCMJ, Article 86: UA from appointed place of duty, violation of UCMJ Article 92: Failure to obey a lawful order/regulation on 880422.
	Award:  Forfeiture of $144.00 pay per month for 1 month, restriction for 14 days (suspended for 6 months), extra duty for 14 days.  No indication of appeal in the record.

880516:	Retention Warning:  Advised of deficiency (Violation of Article 86: SNM was UA from 1730 on 880502 until 0445 on 880503; violation of Article 92: SNM was found sleeping in class, on or about 880422), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 

880806:	NJP for violation of UCMJ, Article 86: Unauthorized absence from 0600 on 880723 to 0600 on 880726 (3 days/A), violation of UCMJ Article 87: Missed ship movement through design on 880723.
	Award:  Restriction and extra duty for 20 days.  No indication of appeal in the record.

880806:	Retention Warning:  Advised of deficiency (By CO's NJP held on 880806 for violation of UCMJ, Article 86, Unauthorized absence from 0600 on 880723 to 0600 on 880726 (3 days/A), and violation of UCMJ Article 87: Missed ship movement through design on 880723), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 

881101:	NJP for violation of UCMJ, Article 86: Unauthorized absence from 0700 on 880904 to 1240 on 880923 (19 days/S), violation of UCMJ Article 87: Missed ship movement through design on 880909.
	Award:  Correctional Custody for 30 days.  No indication of appeal in the record.

890210:	Report of Declaration of Deserter (NAVPERS 1600-3).  Applicant declared a deserter on 890208 having been an unauthorized absentee since 0700 on 890108 from USS AMERICA (CV 66).

890403:	Report of Return of Deserter.  Applicant apprehended by civil authorities at 1800 on 890402 at Bronson, FL.  Returned to military control at 1835 on 890402.  Orig will retain custody of SNM pending transferred to NAVABSCOLLU, Norfolk, VA.

890515:	Report of Declaration of Deserter (NAVPERS 1600-3).  Applicant declared a deserter on 890510 having been an unauthorized absentee since 0600 on 890410 from USS AMERICA (CV 66).

920702:	Pre-trial confinement 920702 to 920818.

920707:	Report of Return of Deserter.  Applicant apprehended by civil authorities at 2045 on 920626 at Ocala, FL.  Returned to military control at 1045 on 920701.  Orig retained custody of SNM until transferred to NAS JACKSONVILLE FL TEMDU for DISPACT/DISPO on 920702.

920818:	Special Court Martial [trial date 920818]
	Charge I:  violation of the UCMJ, Article 85: Desertion from on or about 890410 until on or about 920701 [1178 days/A.]
	Findings:  to Charge I and specifications thereunder, not guilty, but guilty of a violation of Article 86 of the UCMJ.
	Sentence:  Confinement for 180 days, forfeiture of $523.00 pay per month for 6 months, and a Bad Conduct discharge.
	CA 920928:  Sentence is approved and, excepting the bad conduct discharge will be duly executed.  In accordance with the terms of the pretrial agreement, confinement in excess of 120 days is suspended for a period of 12 months from the date the sentence was adjudged, at which time, unless sooner vacated, the suspended portion shall be automatically remitted without further action.  Pursuant to a clemency request submitted by the accused on 920916 all adjudged confinement past 920928 is suspended for a period of 12 months from the date the sentence was adjudged at which time, unless sooner vacated, the suspended portion shall be automatically remitted without further action.
	
920818:	Joined the Naval Consolidated Brig, Naval Station, Charleston, SC, for confinement.

920916:	Petition for Clemency:  Applicant requested remission of 10 days confinement stating that his wife and three children are presently living in a homeless shelter in Jacksonville, Florida.  His wife cannot work but must care for the children, their parents will not help them, and they lost everything.  He has a job waiting for him in Ocala, Florida at the Mark III Conversion Van Company.  He indicated that the wrongfulness of his action and his accountability thereof is not questioned.  He requests clemency in the form of remission of 10 days confinement because his family needs financial support and suitable housing.  

920928:	Released from confinement.

930119:	Navy-Marine Corps Court of Military Review:  The findings of guilty and sentence, as approved on review, are affirmed.

930617:	U.S. Court of Military Appeals:  Request for appeal is denied.

930729:	Special Court-Martial Supplemental Order:  UCMJ Article 71(c), having been complied with, the Bad Conduct discharge is ordered executed.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 930729 with a bad conduct due to court martial conviction (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).

Issue 1:  The Applicant requests a recharacterization of his discharge based on his conduct since being discharged from military service.  The NDRB is authorized to consider post-service factors in the recharacterization of a discharge even though 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.  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 documents that may be provided to the Board to receive consideration of relief based on post-service conduct.  At this time, the Applicant has provided no such documentation for the Board to consider.  Relief is therefore denied.

The Applicant further contends that his periods of unauthorized absence were mitigated by the situation that existed with his wife and child at the time.  Relevant and material details stated in the court-martial proceedings are presumed by the NDRB to be established facts.  With respect to a discharge adjudged by a court-martial case tried under the Uniform Code of Military Justice, the action of the NDRB is restricted to upgrades based upon clemency only (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 service records that the Board reviewed showed no mitigating or extenuating factors sufficient to offset the seriousness of the offenses for which the discharge was awarded.  Relief in this basis is therefore denied.

The Applicant 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.  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.  Secretary of the Navy Instruction 5420.174C of 22 August 19984 (Manual for Discharge Review, 1984) enclosure (1), Chapter 2, paragraph 2.24, COURT-MARTIAL SPECIFICA-TION, PRESUMPTION CONCERNING.

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 Rm309
		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/A9453/A9221/A9105