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Docket No. ND03-01068

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

 ex-AZAR, USN
Docket No. ND03-01068

Applicant’s Request

The application for discharge review was received on 20030604.  The Applicant requests the characterization of service received at the time of discharge be changed to honorable.  The Applicant requests a documentary record review.  The Applicant listed the Veterans of Foreign Wars as the representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20040429.  After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, no impropriety or inequity in the characterization of the Applicant’s service was discovered by the NDRB.  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 5815-010 (formerly 3640420).

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

“1.  I don’t know how to get the DD 214 form.  I’ve written several times hoping you would help find it or refer me to the appropriate place to obtain a DD 214 form.  Your reply will mean a lot to me.  

Waiting to hear from you.”

Documentation

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

Copy of DD Form 214
Letter from VFW

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	941212 - 950227	COG
	Active:   None

Period of Service Under Review:

Date of Enlistment:  950228		Date of Discharge:  010626

Length of Service (years, months, days):

	Active:    03  05  17
	Inactive:  None

Age at Entry:  18			Years Contracted:  4

Education Level:  12			AFQT:  43

Highest Rate:  AZAA

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  2.40 (5)	Behavior:  1.80 (5)		OTA:  2.17

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM, NATO, BATTLE “E”, SSDR (w/2*)

Days of Unauthorized Absence:  1042

Character, Narrative Reason, and Authority of Discharge (at time of issuance):

BAD CONDUCT/Convicted by special court  martial, authority: NAVMILPERSMAN, Article 5815-010 (formerly 3640420).

Chronological Listing of Significant Service Events:

010395:	Counseling:  Advised of deficiency (fraudulent enlistment, failure to disclose dependent child, carrying a concealed firearm, and no license), notified of corrective actions and assistance available.

970106:	NJP for violation of UCMJ, Article 86 (2) Specifications:  UA, violation of UCMJ Article 91 (3) Specifications:  Willful disobedience of a petty officer.
	Award:  Forfeiture of $75 per month for 2 months ($75.00 pay per month for one month suspended for 6 months), restriction and extra duty for 20 days, reduction to E-2 (Suspended for 6 months.)  No indication of appeal in the record.

970626	Vacate suspension awarded at NJP on 970106 due to continued misconduct.  

970626:	NJP for violation of UCMJ, Article 86:  UA.  
Award:  Forfeiture of $200 per month for 1 month, restriction and extra duty for 20 days.  No indication of appeal in the record.

980106:	NJP for violation of UCMJ, Article 91:  Insubordinate conduct toward a chief petty officer and first class petty officer, violation of UCMJ Article 92 (4) Specifications: Willfully failing to obey an order.
Award:  Restriction and extra duty for 30 days, reduction to E-1(suspended for 6 months).  No indication of appeal in the record.

980807:	To pre-trial confinement

981002:	Special Court Martial [trial dates 980929 – 981002]
	Charge I:  violation of the UCMJ, Article 90.
	Specification:  Willful disobedience of a superior commissioned officer.
	Charge II:  violation of the UCMJ, Article 116.
	Specification:  Breach of peace.
	Charge III:  violation of the UCMJ, Article 128.
	Specification:  Assault upon a sentinel.  
	Findings:  to Charge I, II, and III, guilty.
	Sentence:  CHL for 3 months, reduction to E-1, Bad Conduct discharge.
	CA 990512:  Sentence approved and ordered executed, except for bad conduct discharge.
	SA:  see SSPCMO.

981021:	From confinement.

010321:	NMCCCA:  The findings of guilty and sentence, as approved on review, 
	are affirmed.  

010626:	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 20010626 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).  The Board presumed regularity in the conduct of governmental affairs (C).  

Issue 1:  If you desire a copy of your DD Form 214, you may contact the Commander, Naval Military Personnel Command, Pers-312, 5720 Integrity Drive, Millington, TN 38055.

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 is therefore denied.

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, a positive employment record, and certification of community service and non-involvement with civil authorities are examples of verifiable proof that can be submitted.   At this time, the Applicant has not submitted any documentation to mitigate his misconduct while on active duty.  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.  The Naval Military Personnel Manual, (NAVPERS 15560C), Change 22, effective 15 Dec 98 to 21 Aug 2002, 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 90 [Willful disobedience of a superior commissioned officer], Article 116 [Breach of peace], and Article 128 [Assault upon a sentinel].

C.  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.

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.
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