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

ex-YNSR, USN
Docket No. ND00-00168

Applicant’s Request 

The application for discharge review, received 991115, 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 did not designate a representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 010503.  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

1.  It is my hope that when taking into consideration my overall performance marks the review board will evaluate my discharge as inequitable.

2.  It is my hope that the review board will merit clemency based upon my post-service conduct.

Documentation

The applicant's service record could not be obtained and information was extracted from the "Record of Trial" and information provided by the Applicant.  The following additional documentation, submitted by the applicant, was considered:

Copy of DD Form 214
Certificate of Appointment to the rate of Pay Grade E-3 dtd 15 Sep 92
Certificate of Completion Yeoman "A" School dtd 24 Nov 92
YN3 Advancement Exam Results Mar 93
YN2 Advancement Exam Results Mar 94
Certificate of Attendance - Basic Substance Abuse Education dtd Oct 24, 94
Certificate of Completion Communication/Life Skills dtd 8 Nov , 94
Letter from City of Tallahassee - Assistance Coach 
Official Transcript from Tallahassee Community College
Official Transcript form University of Florida
Personal letter from Applicant
Letter from Applicant's Fiancée dtd 10-27-99
Letter from Applicant’s Father
Memo from Church Sunday School Teacher dtd Nov 1, 1999
Letter from Current Employer (Heritage Club)

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: USNR (DEP)	920625 - 920712	COG

Period of Service Under Review:

Date of Enlistment:  920713		Date of Discharge:  960311

Length of Service (years, months, days):

	Active:    03  07  29 (Doesn't exclude lost or confinement time)
	Inactive:  None

Age at Entry:  20			Years Contracted:  4 

Education Level:  13			AFQT:  Not available

Highest Rate:  YN3

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.8 (3)	Behavior:  3.93(3)		OTA:  3.86

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM, AFEM, SSDR, Battle "E" Ribbon 

Days of Unauthorized Absence:  10

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:

940527:	NJP for violation of UCMJ, Article 112A:  Use of a controlled substance, to wit: marijuana.
	Award:  Forfeiture of $475 per month for 2 months, restriction and extra duty for 45 days, reduction to E-3.  No indication of appeal in the record.

941005:	Special Court Martial 
	Charge I:  violation of the UCMJ, Article 86:  Specification: did, on or about 0700, 12 Aug 94, without authority remain absent until on or about 1230, 22 Aug 94.
	Charge II:  violation of the UCMJ, Article 87:  Specification: did, on or about 16 Aug 94, through neglect, miss movement.
	Charge III:  violation of the UCJ, Article 112a (2 Specifications)
	Specification 1 - did, on or about 1 Aug 94, wrongfully use marijuana.
	Specification 2 - did, on or about 22 Aug 94, wrongfully use marijuana.
	Findings:  to Charge I and specification - guilty.
	Charge II and specification - guilty.
	Charge III and specifications 1 and 2 there under - guilty.
	Sentence:  Confinement for 60 days, forfeiture of $500 per month for 2 months, reduction to E-1, Bad Conduct discharge.
	CA 950117:  Sentence approved and ordered executed, except for bad conduct discharge.

941006:	Joined NAVCONBRIG Miramar, for confinement (48 days). (Based on info on DD Form 214)

941123:	From confinement; to appellate leave. (Based on info on DD Form 214)

951129:	NMCCCA:  The findings of guilty and sentence, as approved on review, are affirmed.  [On 5 Oct 94, the NMCCMR changed their name to the Navy Marine Corps Court of Criminal Appeals (NMCCCA)]

960303:	NAMALA review completed.  Applicant did not request clemency.

960311:	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 960311 with a bad conduct due to 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).

The applicant’s first issue states:  “It is my hope that when taking into consideration my overall performance marks the review board will evaluate my discharge as inequitable.”  The applicant was discharged with a Bad Conduct Discharge awarded at a Special Court Martial.  Relevant and material facts stated in a court martial specification are presumed by the NDRB to be established facts.  With respect to a discharge or dismissal adjudged by a court martial case tried under the Uniform Code of Military Justice, the action of the NDRB extends only to a change in the discharge or dismissal for purpose of clemency.

The applicant’s second issue states:  “It is my hope that the review board will merit clemency based upon my post-service conduct.”  The applicant failed to provide documentation of continued sobriety such as drug test results and police records.  Drug testing alone, however does not guarantee an upgrade. The NDRB did not find the applicant’s post service substantial enough to warrant an upgrade.  Relief is denied.

The applicant is eligible for a personal appearance hearing provided the application is received within 15 years from the date of discharge.  Representation at personal appearance hearing is highly recommended.

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 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 2, AUTHORITY/POLICY FOR DEPARTMENTAL DISCHARGE REVIEW.  

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