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

FOR OFFICIAL USE ONLY

ex-AR, USN
Docket No. ND06-00085

Applicant’s Request

The application for discharge review was received on 20051012.  The Applicant requests the Discharge Characterization of Service received at the time of discharge be changed to uncharacterized.  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 20060810.  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 application:

“The bad conduct discharge I received was improper, because I only took a unauthorized leave to take care of my mom emotional and financially.”

Submitted by Applicant subsequent to submission of application:

“To Whom It May Concern,

I recently applied for a change of discharge (ND06-00085) I wrote in the application that the reason for the change is because I wanted to apply for a law enforcement job in my home town.  I realize that I made a mistake in the past.  I believe that what I did to the United States Navy, and the my command was foolish and selfish and I extend my deepest apologies. I’ve had almost seven years to thing about my discharge.  Being a police officer is all I’ve ever wanted to do.  I have the chance to help people and make a difference in the lives of others.  The N.D.R.B. can really make this dream and passion of mine come true. I’m not a bad person.  I’ve had two jobs sense my discharge.  Parts unlimited, a motorcycle warehouse where I worked for five and half years and learned everything in the company.  I even held a lead position for five of those years.  I was a very good worker, a hard worker. My boss at Parts Unlimited was M_ S_ (telephone number deleted). My current job is at RAFLACTAC, where I have been for one year.  My boss there is A_ P_ (telephone number deleted).  My wife and I hope that the N.D.R.B. will be fair in their review and decision.  Thank you for your time and for listening.

Sincerely,

C_ T. F_(Applicant)

P.S: One of my most important reasons (possibly my most important reasons) for wanting to be a police officer is because I want to be a positive role model for my son, S_.  With your help, I can start Basic Law Enforcement Training in May 2006.  Thanks Again!

[signed] Applicant”

Applicant’s Remarks:  (Taken from the DD Form 293.)

“I understand what I did to get my discharge was wrong and disrespectful to my command and to the navy. the BCD I received is preventing me from applying for a police position with the Roanoke City police department.  Please consider changing my discharge please.”

Documentation

In addition to the service and medical records, the following additional documentation, submitted by the Applicant, was considered:

Three pages from Applicant’s service record
Applicant’s DD Form 214
Character Reference ltr from C_ S_, Ch R_ (Raflatac), Load Coordinator, undtd Character Reference ltr from C_ D. F_, Applicant’s wife, dtd November 26, 2005

PART II - SUMMARY OF SERVICE

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

	Inactive:  USNR (DEP)	19960930 - 19961113	COG
	Active:    None

Period of Service Under Review:

Date of Enlistment:  19961114		Date of Discharge:  20000324

Length of Service (years, months, days):

	Active:    03  04  11  (Does not exclude lost time.)
	Inactive:  None

Time Lost During This Period (days):

	Unauthorized absence:  251 days
	Confinement:		    34 days

Age at Entry:  19

Years Contracted:  4

Education Level:  12				AFQT:  37

Highest Rate:  AA

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.0 (2)			Behavior:  2.5 (2)		OTA:  2.92

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214):  None

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

BAD CONDUCT/COURT MARTIAL, authority: NAVMILPERSMAN, Article 5815-010 (formerly 3640420).

Chronological Listing of Significant Service Events: 

970630:	Applicant to unauthorized absence at 0630 on 970630.

970812:	Applicant from unauthorized absence at 0630 on 970812 (42 days/surrendered).

970923:	Summary Court-Martial.
	Charge:  violation of the UCMJ, Article 86: UA fm unit on 97Jun30 until 97Aug12.
	Sentence: Forfeiture of $617.00, restriction for 60 days.
	CA action 971013:  Sentence approved and ordered executed.
	
980418:	Applicant to unauthorized absence at 0630 on 980418.

980418:	Applicant declared a deserter.

980504:	Applicant missed ship’s movement.

981114:	Applicant from unauthorized absence at 2215 on 981114 (209 days/apprehended).

981114:	Applicant to pretrial confinement.

981215:	Applicant found qualified for separation.

981218:	Applicant from pretrial confinement.

981218:	Special Court Martial
	Charge I:  violation of the UCMJ, Article 86:
	Specification:  UA fm unit 98Apr18 to 98Nov14.  Plea: Guilty.  Findings: Guilty.
	Charge II:  violation of UCMJ, Article 87:
	Specification:  Missing movement, 98May04.  Plea: Guilty.  Findings: Guilty.
	Sentence:  Confinement for 55 days, forfeiture of $400 per month for 2 months, reduction to AR, Bad Conduct discharge.
	CA 990326:  The 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 confinement in excess of 45 days is suspended for twelve months.
	SA:  see SSPCMO.
	
991218:	Applicant to confinement.

991219:	Applicant from confinement.

981222:	Applicant to appellate leave.

990203:	NMCCCA:  The findings of guilty and sentence, as approved on review, 
	are affirmed.  

000320:	Appellate review complete.

000324:	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 20000324 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 available records, supporting documents, facts, and circumstances unique to this case, the Board found that the Applicant’s issues were insufficient to merit clemency (C).

In the Applicant’s case, he states “The bad conduct discharge I received was improper, because I only took a unauthorized leave to take care of my mom emotional and financially.”  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. 

The Applicant states in his letter to NDRB “The reason for the change is because I wanted to apply for a Law Enforcement job in my home town”.   For the edification of the Applicant, the Board has no authority to upgrade a discharge for the sole purpose of enhancing employment opportunities.  Regulations limit the Board’s review to a determination on the propriety and equity of the discharge.  Relief is not Warranted  

The following is provided for the edification of the Applicant.  Normally, to permit relief, a procedural impropriety or inequity must have occurred during the discharge process for the period of enlistment in question.  The Board discovered no impropriety after a review of Applicant’s case.  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, documentation of community service, credible evidence of a substance free lifestyle and certification of non-involvement with civil authorities.  As of this time, the Applicant has not provided sufficient post-service documentation for the Board to consider.  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.  The Applicant can provide documentation to support any claims of post-service accomplishments or any additional evidence related to this 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, Articles 86, (unauthorized absence for more than 30 days) and 87 (Missing Movement).

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