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

 ex-FR, USN
Docket No. ND04-00071

Applicant’s Request

The application for discharge review was received on 20031014.  The Applicant requests the characterization of service received at the time of discharge be changed to general (under honorable conditions).  The Applicant originally requested a personal appearance hearing discharge review before the Board in the Washington National Capital Region.  The Applicant did not list any representative on the DD Form 293.  The Applicant failed to respond by the deadline date to a letter requiring the Applicant to notify the Naval Discharge Review Board of intention to be present for the requested personal appearance hearing.  Therefore, a documentary review was conducted, and the Applicant is not eligible for further review by this Board.

Decision

A documentary review was conducted in Washington, D.C. on 20050713.  After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, the Board determined that clemency was not warranted and that the characterization of discharge was appropriate.  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 stated

Applicant’s issues, as stated on the application:

1.  “I would like apologizing for my behavior wild I was active duty I am very immature and very stupid.  I missed the navy and now I am much older and matured I realized my mistakes please give me and chance.  I really need my discharge upgraded.  I would like to re join the navy I’m really to serve my country the way I should have before please give me another chance.”

Documentation

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

Applicant’s DD Form 214

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	870415 - 870805	COG
	Active:   USN 			None

Period of Service Under Review:

Date of Enlistment:  870806		Date of Discharge:  911211

Length of Service (years, months, days):

	Active:    04  00  02  (Does not include lost time)
	Inactive:  None

Age at Entry:  20			Years Contracted:  4 

Education Level:  12			AFQT:  24

Highest Rate:  FA

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.60 (1)		Behavior:  2.60 (1)		OTA:  3.20

Military Decorations:  None

Unit/Campaign/Service Awards:  NER, CGR, SSDR

Days of Unauthorized Absence:  87

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:

871209:	Retention Warning:  Advised of deficiency (Failure to disclose dependents), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 

880924:	NJP for violation of UCMJ, Article 91:  Disrespect; violation of UCMJ, Article 128:  Assault; violation of UCMJ, Article 134:  Communicating a threat.
	Award:  Forfeiture of $335.00 pay per month for 2 months, restriction and extra duty for 45 days, reduction to E-1.  No indication of appeal in the record.

881024:	Retention Warning:  Advised of deficiency (The Applicant has committed a violation of the UCMJ), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 

890425:	UA from USS PLATTE (AO-186) at Portsmouth, VA, 0725, 890425.

890426:	Surrendered on board USS PLATTE (AO-186) 0725, 890426 (1 day) at Norfolk, VA.

890511:	NJP for violation of UCMJ, Article 86:  Unauthorized absence.
	Award:  Forfeiture of $50.00 pay per month for 1 month (suspended for 6 months), restriction and extra duty for 14 days.  No indication of appeal in the record.

890722:	UA from USS PLATTE at Portsmouth, VA, 0725, 890722.

890815:	Surrendered on board USS PLATTE (AO-186) 1430, 890815 at Norfolk, VA (24 days).
  
890822:	NJP for violation of UCMJ, Article 86:  Unauthorized absence; violation of UCMJ, Article 91:  Disrespect.
	Award:  Forfeiture of $349.00 pay per month for 2 months (suspended for 6 months), 30 days correctional custody.  No indication of appeal in the record.

900215:	NJP for violation of UCMJ, Article 112a:  Wrongful use of cocaine.
	Award:  Forfeiture of $360.00 pay per month for 2 months, restriction and extra duty for 45 days.  No indication of appeal in the record.

900321:	Report of Declaration of Deserter (NAVPERS 1600-3).  Applicant declared a deserter on 900316 having been an unauthorized absentee since 1800, 900215 from USS PLATTE (AO-186).

900419:	Report of Return of Deserter.  Applicant apprehended by civil authorities on 900418 (1820) at Gary, IN. Returned to military control 900418 (1820). Retained custody pending transfer to NACU NORVA.  (62 days)

900604:	Special Court Martial [trial dates 900601 – 900604]
	Charge I:  violation of the UCMJ, Article 134.  
Specification:  Breaking restriction on 900215.  
Charge II: violation of the UCMJ, Article 86.
Specification:  Unauthorized absence 900215 – 900418 [62 days/A].  
	Findings:  to Charge I and the sole specification thereunder, guilty.  To Charge II and the sole specification thereunder, guilty, excepting the words “he was apprehended”.  Of the excepted words, not guilty, of the specification as excepted, guilty, to Charge II, guilty.
	Sentence:  Confinement for 75 days, forfeiture of $150.00 pay per month for 3 months, Bad Conduct Discharge.
	CA 901230:  Sentence approved and, except for that part of the sentence extending to a bad conduct discharge, will be executed, but the execution of that part of the sentence adjudging any confinement in excess of 45 days is suspended for 12 months from 900604, at which time, unless the suspension is sooner vacated the suspended part of the sentence will be remitted without further action.
	
900604:	Joined Naval Brig, Naval Station, Norfolk, for confinement.

900607:	Applicant waived clemency review [Extracted from NC&PB database].

910405:	NMCCMR:  The findings of guilty and sentence, as approved on review, are affirmed.

910802:	Appellate review completed.

910830:	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 19911211 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.  In response to the Applicant’s issue, 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.  Clemency is an act of leniency that reduces the severity of the punishment imposed.  After a thorough review of the Applicant’s record, issues submitted, and post service accomplishments, the Board determined that clemency was not warranted and that the sentence awarded the Applicant at his court-martial was appropriate for the offenses he committed.  Relief denied.

Since the NDRB has no jurisdiction over reenlistment, reentry, or reinstatement into the Navy, Marine Corps, or any other of the Armed Forces, NDRB is not authorized to change a reenlistment code.  An unfavorable “RE” code is, in itself, not a bar to reenlistment.  A request for a waiver can be submitted during the processing of a formal application for reenlistment through a recruiter.  Only the Board for Correction of Naval Records (BCNR) can make changes to reenlistment codes.

The Applicant remains eligible for a personal appearance hearing, provided an application is received, at the NDRB, within 15 years from the date of discharge.  The Applicant can provide documentation to support any claims of post-service accomplishments or any other evidence related to his discharge at that time.  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), effective 15 Aug 91 until 04 Mar 93, Article 3640420, DISCHARGE OF ENLISTED PERSONNEL ADJUDGED BY SENTENCE OF COURT‑MARTIAL.

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 86, unauthorized absence for more than 30 days.

C.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part II, 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 “http://Boards.law.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:

		Secretary of the Navy Council of Review Boards
		Attn:  Naval Discharge Review Board
		720 Kennon Street SE Rm 309
		Washington Navy Yard DC  20374-5023