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

FOR OFFICIAL USE ONLY

 ex-AMHAR, USNR
Docket No. ND05-01249

Applicant’s Request

The application for discharge review was received on 20050725.  The Applicant requests the Discharge Characterization of Service received at the time of discharge be changed to honorable or general (under honorable conditions).  The Applicant requests a documentary record discharge review.  The Applicant did not designate a representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20060406.  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 as a bad conduct discharge by reason of court-martial conviction.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the attached document/letter: 

Dear Sir/Madam,

Re:  Request to have Bad Conduct Discharge upgraded

I respectfully request that my discharge be upgraded to General (under honorable conditions) or Honorable.  I realize that at the time I was young and stupid.  I thought I could ignore my problems and that they would go away.  Unfortunately I learned the hard way and not only did I ruin my financial status, but I ruined what could have been a successful career in the U.S. Navy.  Fortunately for me, I have strived to become a more responsible and successful person both in my personal and professional life.  I feel that I have succeeded in accomplishing the goals that I have set for myself.  It has been approximately 11 years since I was discharged from the U.S Navy.  Since my discharge I have attended ITT Technical Institute in Seattle, WA and have maintained steady employment.  I’m currently holding a position as a senior drafter while preparing to take the test for my EIT certification.  I’m also planning on going back to school to become a Public Engineer.  I have cleared up my credit report through all major credit reporting agencies without filling bankruptcy.  I have been offered and received a number of credit cards (I have learned to determine which ones are better than others) and have received a loan for a brand new automobile only in my name.  I’ve also gotten married and have two children.  I have volunteered as a youth soccer coach.  I have volunteered as “cookie dad” for my wife’s girl scout troop for the last two years and help with various girl scout activities.  I also participate in the girl scouts’ involvement in Relay for Life.  My wife and I are planning on moving to Australia.  Having my discharge upgraded would increase my ability to obtain a work visa and legal residency in Australia.

Thank you,
Sincerely,

[signed] J_A_ N_ Jr. (Applicant)
SSN: XXX XX-XXXX

Documentation

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

Letter from L_ N_ (Applicant’s wife), dtd June 26, 2005
Letter from Applicant, dtd August 20, 2005
Cash Payment Receipt, dtd July 6, 1993
Enlisted Performance Evaluation Report (5)
Letter of Appreciation, dtd March 2, 1992
Criminal History Report dtd August 23, 2005

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:  19881217		Date of Discharge:  19950216

Length of Service (years, months, days):

	Active:    05  02  22  (Does exclude lost time.)
	Inactive:  00  08  25

Time Lost During This Period (days):

	Unauthorized absence:  none
	Confinement:		  75 days

Age at Entry:  17 (Parental Consent)

Years Contracted:  8 

Education Level:  12				AFQT:  60

Highest Rate:  AMH2

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.7 (5) 		Behavior:  3.6 (5) 		OTA:  3.64

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214):  Navy “E” Ribbon, National Defense Service Medal.

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: 

890911:	Commenced active duty for a period of 48 months.

930418:	Applicant failed to report by 0700, 18 April 1993 in accordance with order issued by Helicopter Anti-Submarine Squadron Light 84.  Reported aboard at 1100 this date having been an unauthorized absentee for about four (4) hours.
  
931021:	Special Court Martial [trial date 931021]
	Charge I:  violation of the UCMJ, Article 123a, (77 specifications).
	Specification 1:  Utter a check in the amount of $12.00 with intent to defraud on 8 March 1993.  Plea: Not Guilty.  Finding: Not Guilty.
Specification 2:  Utter a check in the amount of $21.58 with intent to defraud on 8 March 1993.  Plea: Not Guilty.  Finding: Not Guilty.
Specification 3:  Utter a check in the amount of $41.75 with intent to defraud on 20 March 1993.  Plea: Not Guilty.  Finding: Not Guilty.
Specification 4:  Utter a check in the amount of $43.25 with intent to defraud on 23 March 1993.  Plea: Not Guilty.  Finding: Not Guilty.
Specification 5:  Utter a check in the amount of $52.35 with intent to defraud on 24 March 1993.  Plea: Not Guilty.  Finding: Not Guilty.
Specification 6:  Utter a check in the amount of $39.95 with intent to defraud on 25 March 1993.  Plea: Not Guilty.  Finding: Not Guilty.
Specification 7:  Utter a check in the amount of $37.50 with intent to defraud on 25 March 1993.  Plea: Not Guilty.  Finding: Not Guilty.
Specification 8:  Utter a check in the amount of $42.45 with intent to defraud on 26 March 1993.  Plea: Guilty.  Finding: Guilty.
Specification 9:  Utter a check in the amount of $40.90 with intent to defraud on 26 March 1993.  Plea: Guilty.  Finding: Guilty.
Specification 10:  Utter a check in the amount of $30.00 with intent to defraud on 4 April 1993.  Plea: Guilty.  Finding: Guilty.
Specification 11:  Utter a check in the amount of $44.00 with intent to defraud on 4 April 1993.  Plea: Guilty.  Finding: Guilty.
Specification 12:  Utter a check in the amount of $35.00 with intent to defraud on 5 April 1993.  Plea: Guilty.  Finding: Guilty
Specification 13:  Utter a check in the amount of $30.00 with intent to defraud on 5 April 1993.  Plea: Guilty.  Finding: Guilty
Specification 14:  Utter a check in the amount of $30.30 with intent to defraud on 5 April 1993.  Plea: Guilty.  Finding: Guilty
Specification 15:  Utter a check in the amount of $30.00 with intent to defraud on 6 April 1993.  Plea: Guilty.  Finding: Guilty
Specification 16:  Utter a check in the amount of $30.00 with intent to defraud on 7 April 1993.  Plea: Guilty.  Finding: Guilty
Specification 17:  Utter a check in the amount of $30.00 with intent to defraud on 7 April 1993.  Plea: Guilty.  Finding: Guilty
Specification 18:  Utter a check in the amount of $30.00 with intent to defraud on 7 April 1993.  Plea: Guilty.  Finding: Guilty
Specification 19:  Utter a check in the amount of $37.40 with intent to defraud on 7 April 1993.  Plea: Guilty.  Finding: Guilty.
Specification 20:  Utter a check in the amount of $30.00 with intent to defraud on 8 April 1993.  Plea: Guilty.  Finding: Guilty.
Specification 21:  Utter a check in the amount of $30.00 with intent to defraud on 8 April 1993.  Plea: Guilty.  Finding: Guilty.
Specification 22:  Utter a check in the amount of $30.00 with intent to defraud on 8 April 1993.  Plea: Guilty.  Finding: Guilty.
Specification 23:  Utter a check in the amount of $34.25 with intent to defraud on 8 April 1993.  Plea: Guilty.  Finding: Guilty.
Specification 24:  Utter a check in the amount of $30.00 with intent to defraud on 9 April 1993.  Plea: Guilty.  Finding: Guilty.
Specification 25:  Utter a check in the amount of $30.00 with intent to defraud on 9 April 1993.  Plea: Guilty.  Finding: Guilty.
Specification 26:  Utter a check in the amount of $30.00 with intent to defraud on 9 April 1993.  Plea: Guilty.  Finding: Guilty.
Specification 27:  Utter a check in the amount of $27.75 with intent to defraud on 9 April 1993.  Plea: Guilty.  Finding: Guilty.
Specification 28:  Utter a check in the amount of $30.00 with intent to defraud on 10 April 1993.  Plea: Guilty.  Finding: Guilty.
Specification 29:  Utter a check in the amount of $30.00 with intent to defraud on 10 April 1993.  Plea: Guilty.  Finding: Guilty.
Specification 30:  Utter a check in the amount of $31.30 with intent to defraud on 10 April 1993.  Plea: Guilty.  Finding: Guilty.
Specification 31:  Utter a check in the amount of $30.00 with intent to defraud on 12 April 1993.  Plea: Guilty.  Finding: Guilty.
Specification 32:  Utter a check in the amount of $30.00 with intent to defraud on 12 April 1993.  Plea: Guilty.  Finding: Guilty.
Specification 33:  Utter a check in the amount of $30.00 with intent to defraud on 12 April 1993.  Plea: Guilty.  Finding: Guilty.
Specification 34:  Utter a check in the amount of $30.00 with intent to defraud on 13 April 1993.  Plea: Guilty.  Finding: Guilty.
Specification 35:  Utter a check in the amount of $30.00 with intent to defraud on 14 April 1993.  Plea: Guilty.  Finding: Guilty.
Specification 36:  Utter a check in the amount of $30.02 with intent to defraud on 14 April 1993.  Plea: Guilty.  Finding: Guilty.
Specification 37:  Utter a check in the amount of $30.00 with intent to defraud on 15 April 1993.  Plea: Guilty.  Finding: Guilty.
Specification 38:  Utter a check in the amount of $30.00 with intent to defraud on 15 April 1993.  Plea: Guilty.  Finding: Guilty.
Specification 39:  Utter a check in the amount of $35.00 with intent to defraud on 16 April 1993.  Plea: Guilty.  Finding: Guilty.
Specification 40:  Utter a check in the amount of $35.00 with intent to defraud on 19 April 1993.  Plea: Guilty.  Finding: Guilty.
Specification 41:  Utter a check in the amount of $30.00 with intent to defraud on 20 April 1993.  Plea: Guilty.  Finding: Guilty.
Specification 42:  Utter a check in the amount of $30.00 with intent to defraud on 21 April 1993.  Plea: Guilty.  Finding: Guilty.
Specification 43:  Utter a check in the amount of $30.00 with intent to defraud on 21 April 1993.  Plea: Guilty.  Finding: Guilty.
Specification 44:  Utter a check in the amount of $35.00 with intent to defraud on 22 April 1993.  Plea: Guilty.  Finding: Guilty.
Specification 45:  Utter a check in the amount of $30.00 with intent to defraud on 23 April 1993.  Plea: Guilty.  Finding: Guilty.
Specification 46:  Utter a check in the amount of $27.00 with intent to defraud on 23 April 1993.  Plea: Guilty.  Finding: Guilty.
Specification 47:  Utter a check in the amount of $30.00 with intent to defraud on 25 April 1993.  Plea: Guilty.  Finding: Guilty.
Specification 48:  Utter a check in the amount of $27.00 with intent to defraud on 25 April 1993.  Plea: Guilty.  Finding: Guilty.
Specification 49:  Utter a check in the amount of $35.00 with intent to defraud on 26 April 1993.  Plea: Guilty.  Finding: Guilty.
Specification 50:  Utter a check in the amount of $35.00 with intent to defraud on 27 April 1993.  Plea: Guilty.  Finding: Guilty.
Specification 51:  Utter a check in the amount of $35.00 with intent to defraud on 27 April 1993.  Plea: Guilty.  Finding: Guilty.
Specification 52:  Utter a check in the amount of $35.00 with intent to defraud on 28 April 1993.  Plea: Guilty.  Finding: Guilty.
Specification 53:  Utter a check in the amount of $30.00 with intent to defraud on 29 April 1993.  Plea: Guilty.  Finding: Guilty.
Specification 54:  Utter a check in the amount of $30.00 with intent to defraud on 6 May 1993.  Plea: Guilty.  Finding: Guilty.
Specification 55:  Utter a check in the amount of $30.00 with intent to defraud on 6 May 1993.  Plea: Guilty.  Finding: Guilty.
Specification 56:  Utter a check in the amount of $36.50 with intent to defraud on 6 May 1993.  Plea: Guilty.  Finding: Guilty.
Specification 57:  Utter a check in the amount of $30.00 with intent to defraud on 10 May 1993.  Plea: Guilty.  Finding: Guilty.
Specification 58:  Utter a check in the amount of $30.00 with intent to defraud on 11 May 1993.  Plea: Guilty.  Finding: Guilty.
Specification 59:  Utter a check in the amount of $30.00 with intent to defraud on 11 May 1993.  Plea: Guilty.  Finding: Guilty.
Specification 60:  Utter a check in the amount of $30.00 with intent to defraud on 12 May 1993.  Plea: Guilty.  Finding: Guilty.
Specification 61:  Utter a check in the amount of $47.75 with intent to defraud on 12 May 1993.  Plea: Guilty.  Finding: Guilty.
Specification 62:  Utter a check in the amount of $37.00 with intent to defraud on 13 May 1993.  Plea: Guilty.  Finding: Guilty.
Specification 63:  Utter a check in the amount of $35.00 with intent to defraud on 14 May 1993.  Plea: Guilty.  Finding: Guilty.
Specification 64:  Utter a check in the amount of $30.00 with intent to defraud on 16 May 1993.  Plea: Guilty.  Finding: Guilty.
Specification 65:  Utter a check in the amount of $30.00 with intent to defraud on 18 May 1993.  Plea: Guilty.  Finding: Guilty.
Specification 66:  Utter a check in the amount of $35.00 with intent to defraud on 22 May 1993.  Plea: Guilty.  Finding: Guilty.
Specification 67:  Utter a check in the amount of $41.00 with intent to defraud on 23 May 1993.  Plea: Guilty.  Finding: Guilty.
Specification 68:  Utter a check in the amount of $30.00 with intent to defraud on 24 May 1993.  Plea: Guilty.  Finding: Guilty.
Specification 69:  Utter a check in the amount of $35.00 with intent to defraud on 25 May 1993.  Plea: Guilty.  Finding: Guilty.
Specification 70:  Utter a check in the amount of $27.00 with intent to defraud on 26 May 1993.  Plea: Guilty.  Finding: Guilty.
Specification 71:  Utter a check in the amount of $30.50 with intent to defraud on 26 May 1993.  Plea: Guilty.  Finding: Guilty.
Specification 72:  Utter a check in the amount of $35.00 with intent to defraud on 27 May 1993.  Plea: Guilty.  Finding: Guilty.
Specification 73:  Utter a check in the amount of $30.00 with intent to defraud on 28 May 1993.  Plea: Guilty.  Finding: Guilty.
Specification 74:  Utter a check in the amount of $30.00 with intent to defraud on 29 May 1993.  Plea: Guilty.  Finding: Guilty.
Specification 75:  Utter a check in the amount of $30.00 with intent to defraud on 30 May 1993.  Plea: Guilty.  Finding: Guilty.
Specification 76:  Utter a check in the amount of $31.00 with intent to defraud on 31 May 1993.  Plea: Guilty.  Finding: Guilty.
Specification 77:  Utter a check in the amount of $31.00 with intent to defraud on 1 June 1993.  Plea: Guilty.  Finding: Guilty.
	Charge II:  violation of UMCJ, Article 107.
	Specification:  Make a false statement with intent to deceive on 28 April 1993.  Plea: Guilty.  Finding: Guilty..
	Sentence:  Confinement for 3 months, forfeiture of $543 per month for 3 months, reduction to E-1, Bad Conduct discharge.
	CA 930113:  The sentence approved and ordered executed, except for bad conduct discharge.
	
931021:	Joined Naval Consolidated Brig Miramar, Naval Air Station Miramar, San Diego, California, for confinement.

940105:	From confinement, restored to full duty. 

940812:	NMCCMR:  The findings of guilty and sentence, as approved on review, 
	are affirmed.  

950109:	COMA:  Request for appeal denied. 

950216:	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 19950216 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).  After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, the Board found that the Applicant’s issues were insufficient to merit clemency (C).  

For the edification of the Applicant, 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.

The Applicant requests an upgrade based on post service accomplishments.
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 Naval service.  The NDRB is authorized to consider post-service factors in the recharacterization of a discharge to the extent such matters provide a basis for a more thorough understanding of the Applicant’s performance and conduct during the period of service under review.  Examples of documentation that should be provided to the Board include proof of educational pursuits, verifiable employment records, and documentation of community service.  As of this time, the Applicant has not provided sufficient post-service documentation for the Board to consider.  Relief denied.

The Applicant requests an upgrade to increase his ability to obtain a work visa and legal residency in Australia. The Board advises the Applicant that it has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities.  Regulations limit the Board’s review to a determination on the propriety and equity of the discharge. Relief denied.

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. 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.  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 123a(checks, etc., insufficient funds, intent to deceive).

C.   Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part II, Para 205(2), Jurisdictional Limitations Authority for Review of Discharges.

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