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

ex-AR, USNR
Docket No. ND00-00104
 
Applicant’s Request

The application for discharge review, received 991028, 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 designated the Veterans of Foreign Wars as his representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 000720.  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.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues (verbatim)

1.  I was told during the investigation of this crime that it was not too severe and that I probably would not receive any brig time or such a severe discharge.  I was more than cooperative from the start to finish and yet misled from the word go!

2.  I feel my discharge is improper - because my records will show neither as a civilian or a sailor do I have any prior charges or any disciplinary actions taken against me.  On top of a clean record during my service, I also became a qualified aircraft director on the flight deck of USS INDEPENDENCE within a years time.  Most unrated airmen can not even do that in a four year enlistment.  I think this shows the commitment and dedication I had to offer the Navy not to mention the responsibility & respect I showed towards my fellow shipmates.

3.  Although there is no excuse for acting the way I did as far as committing this crime, I feel I must point out that during this time I was not even stationed on a boat, but living in barracks on base.  I was on medical hold and I had about 3 weeks before I was to return home.  Considering the situation I was in, I don't feel I was putting anybody's life in danger by doing what I did.  Once again it does not excuse my offense, but my circumstance should have been considered.

4.  Another reason I feel my discharge is improper is because all four sailors involved did not receive equal punishment.  One M_ E_ (AN) was given only fifteen days in the brig along with a General discharge (which is what I feel is proper).  The remaining three of us received a forty five day brig sentence along with a disgraceful Bad Conduct discharge.

5.  I don't the Judge Advocate took much time in considering just how damaging a Bad Conduct discharge is to a person.  A civilian criminal can commit a crime ten time more severe than what I did and a few years down the road that crime might not come back on him or affect his life, but, a Bad conduct discharge haunts me for the rest of my life.  Totally inhibiting me from attaining certain civil service jobs, Federal Govt. jobs, etc.  All this for smoking one marijuana cigarette.  I cannot offer any excuse for what I did mainly because there is no excuse, nor do I agree with, or endorse the use of any drug.  But, at the same time, I don't feel I should have to live with disgrace of a Bad Conduct discharge for one stupid mistake I made when I was 21 years old.

I'm not asking for pity.  I am asking for a little reasoning, something I did not receive in court.  I hope once you review my records and these issues that you will find it reasonable and just to reverse my Bad Conduct discharge to a General discharge under Honorable Conditions.  Thank you all for your time.

6.  IAW SECNAV Instruction 5420.174C of 22 August 1984 (MDR 1984), enclosure (1), chapter 9, paragraph 9.3, Equity of Discharge, we ask the Board to consider the following outstanding post-service factors in the recharacterization of the applicant's discharge:
•	Solid employment history since discharge.  Reference employer's letter of recommendation dated October 20, 1999, Crisp Country Fire Chief's recommendation dated September 30, 1999, and applicant's letter (attached) that indicates he was promoted from a volunteer to a full time position as a firefighter with Crisp County.
•	No civilian drug arrests or convictions since time of discharge as evidenced by Georgia State criminal record.

7.  We ask the Board to consider the applicant's discharge IAW SECNAV Instruction 5420.174C of 22 August 1984 (MDR 1984), enclosure (1), chapter 9, paragraph 9.2, Propriety of Discharge.

Documentation

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

Applicant's undated ltr advising that he was hired at the Crisp Co. Fire Rescue as a firefighter - passing the drug screening
Copy of DD Form 214
Character Reference ltr from R.R. L_, Fire Chief, concerning applicant being a volunteer for Crisp C. Fire Rescue, dtd Sep 30, 1999
Letter of Employment from R_ B_, Rooney Bowen Chevrolet-Oldsmobile, dtd Oct 20, 1999
Police Record

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: None

Period of Service Under Review:

Date of Enlistment:  910306		Date of Discharge:  941222

Length of Service (years, months, days):

	Active:    03  09  10 (Doesn't exclude lost time/confinement/appellate leave.)
	Inactive:  00  00  07

Age at Entry:  19			Years Contracted:  8

Education Level:  12			AFQT:  56

Highest Rate:  AA

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.7 (2)	Behavior:  3.8 (2)		OTA:  3.7

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM, SWASM, SSDR 

Days of Unauthorized Absence:  None

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:

910313:	Commenced 24 months active duty.

930222:	NAVHOSP Yokosuka, JA:  20 year old male for follow-up muscle surgery left eye on 05 Feb 93.  

930510:	Special Court Martial 
	Charge I:  violation of the UCMJ, Article 112a, 2 Specifications.
	Specification 1:  at Fleet Activities, Yokosuka, Japan, on diverse occasions between 10 Mar 1993 and 22 Mar 93, wrongfully use hashish.
	Specification 2:  at Fleet Activities, Yokosuka, Japan, on or about 29 Mar 93, wrongfully use marijuana.
	Findings:  to Charge I and specifications 1 and 2 thereunder, guilty.
	Sentence:  confinement for 60 days, forfeiture of $500 per month for 2 months, reduction to E-1, Bad Conduct discharge.
	CA 930705:  Sentence approved and ordered executed, except for bad conduct discharge.
	
930510:	To confinement.

930625:	From confinement, for duty.

930719:	To appellate leave.  Assigned to NAMALA WASHDC for record purpose.

930827:	NC&PB clemency not granted; offer VA treatment.

940209:	NMCCMR:  The findings of guilty and sentence, as approved on review, are affirmed. 

940916:	COMA:  Request for appeal denied.

941222:	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 941212 with a bad conduct due to special 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).

In response to applicant’s issues 1 and 4, to permit relief, an error or injustice must be found to have existed during the period of enlistment under review.  There was nothing in the records, nor did the applicant provide any documentation, to indicate there existed an error of fact, law, procedure, or discretion at the time of discharge.  There was no rights violation and no basis for relief.

In response to applicant’s issue 2, the applicant implies that a permissive doctrine exists whereby one in the military is allowed a single misdeed with no “prior charges or disciplinary actions”.  The Board believes that the applicant is confusing this with the civilian world wherein some offenses are treated with leniency because they are a first time incident on an otherwise clear record.  No such leniency exists in the military.  The applicant is responsible for his actions and must accept the consequences of his misdeeds.  The Board will not grant relief on the basis of this issue.

In issue 3, the applicant states that “my circumstance should be considered”.  The Board is confused as to what “circumstance” the applicant is referring to.  Whether the applicant was aboard ship or in barracks has absolutely no relevance to the characterization of discharge.  The Navy has a ‘zero tolerance’ policy for drug use wherever or whenever illegal substances are used by a servicemember.  Relief denied.

In response to applicant’s issue 5,  the Board determined that a person in the military must abide by the standards as set forth in the UCMJ, regardless of what guide lines his civilian counterparts might utilize.  While the Board regrets that the applicant must live with the stigma associated with a Bad Conduct Discharge, it cannot justify changing the reason for the discharge unless it is inappropriate in describing the circumstances surrounding the applicant's discharge.

In issues 6 and 7, the applicant’s representative requested consideration of post-service factors in the recharacterization of the applicant’s discharge IAW SECNAVINST 5420.174C., enclosure (1), Chapter 9, paragraph 9.2 and 9.3.  The NDRB is authorized to consider post-service factors in the recharacterization of a discharge.  However, 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 the civilian life subsequent to leaving the service.  Normally, to permit relief, an error or injustice must have been found to have existed during the period of enlistment in question.  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.  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, is considered.  The applicant provided character references from the Crisp County Fire Chief and from Rooney Bowen Chevrolet-Oldsmobile and a police record check from Albany, Georgia as documentation of his post-service.  The applicant's efforts need to be more encompassing than those provided.  The applicant should have produced evidence of continuing educational pursuits, a verifiable employment record covering the entire period of time between the applicant’s discharge and the present, documentation of community service and proof of his not using drugs in order for consideration for clemency based on post-service conduct.  At this time the applicant has not provided sufficient documentation of good character and conduct.  Therefore no relief will be granted.  He is encouraged to continue with his pursuits and is reminded that he is eligible for a personal appearance hearing provided the application is received within 15 years from the date of discharge.  Relief denied.

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 SPECIFICATION, 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