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

 ex-FR, USN
Docket No. ND00-00622

Applicant’s Request

The application for discharge review, received 000421, 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 list any representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 001121.  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)

A.  I was accepted by waiver of drug problems.  By resolving around those environment brought me back to usage.

B.  I was young and at the time and I was easy to be influence by the life style.

C.  My discharge was to harsh knowing that I was first joined in by a waiver.

D.  If I had be given a chance to regain control, maybe I'll been still serving my country.

E.  Today I'm free from drugs and being a productive citizen of the United States.

G.  Today my whole outlook of life is totally different and if I had the chance, I would love to start all over to serve my country the best that I could.

H.  Being inexperience to a lot of issues lead me to make bad decisions which cost me my career.

Documentation

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

None

PART II - SUMMARY OF SERVICE

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

	Active:   USN 		None
	Inactive: USNR (DEP)	890629 - 890702	COG

Period of Service Under Review:

Date of Enlistment:  890703		Date of Discharge:  930913

Length of Service (years, months, days):

	Active:    03  08  10
	Inactive:  None

Age at Entry:  20			Years Contracted:  4 

Education Level:  12			AFQT:  36

Highest Rate:  FN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.53 (3)	Behavior:  3.06 (3)		OTA:  3.46

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM, SSDR 

Days of Unauthorized Absence:  137 

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:

891122:	Applicant on unauthorized absence from 0645-1030, this date.

891220:	Applicant on unauthorized absence from 0645-0822, this date.  Not excused.

900612:	NJP for violation of UCMJ, Article 92: Dereliction of duty on 900504.
	Award:  Restriction and extra duty for 15 days.  No indication of appeal in the record.

900627:	Applicant on unauthorized absence from 0645-1000, this date.  Absence not excused.

900703:	NJP for violation of UCMJ, Article 108: Without proper authority, through neglect, damage by trying to pry open, a change machine property of the United States.
	Award:  Restriction and extra duty for 45 days, reduction in rate (suspended for 6 months).  No indication of appeal in the record.

900816:	NJP for violation of UCMJ, Article 134: Break restrictions, violation of UCMJ Article 86: (3 Specifications), Spec 1: Failed to go to his appointed place of duty on or about 1835, 900713, Spec 2: Failed to go to appointed place of duty on or about 1835, 900713 until 1944, 900713, Spec 3: Failed to go to appointed place of duty on or about 1835, 900713.
	Award:  Forfeiture of $362.00 per month for 2 months, restriction and extra duty for 45 days.  No indication of appeal in the record.

900816:	Retention Warning from [ACU 2, NAB, Little Creek, NORVA]:  Advised of deficiency (Misconduct due to minor disciplinary infractions, misconduct due to a pattern of misconduct: habitual tardiness, unauthorized absence, and violation of UCMJ, Article 108, destruction of military property), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 

911025:	Report of Declaration of Deserter (NAVPERS 1600-3).  Applicant declared a deserter on 911025 having been an unauthorized absentee since 0645, 910925 from ACU TWO (53210).

920128:	Civil conviction at Circuit Court Norfolk, Virginia for possession of cocaine.
	Sentenced on 920227, placed on supervised probation for a period of 3 years.  To appear in the Circuit Court of Norfolk, Virginia for review if no parol violations committed during this time court will dismiss the charge under "First Offenders Act".

920129:	Report of Return of Deserter.  Applicant apprehended by civil authorities, returned to military control 920128 (2200).  Delivered to ACU-2 at 2200, 920128.

920129:	Pretrial restraints from 920129 to 920313 [44 days].

920313:	Special Court Martial [trial date 920313]
	Charge I:  violation of the UCMJ, Article 86, 
	Specification 1:  Absent in desertion from 910925 – 920128, [125 days/A.]
	Charge II: violation of the UCMJ, Article 86, Specification 1: Absent from unit from 910815 - 910827, [12days/A].  Charge III: violation of the UCMJ, Article 112a, Specification 1: Wrongfully use cocaine on 910827 in the Hampton Roads Area, Norfolk Virginia.
	Findings:  to Charge I and specification 1 thereunder, guilty. To Charge II and specification 1 thereunder, guilty.  To Charge III and specification thereunder, guilty.
	Sentence:  CHL for 60 days, forfeiture of $350.00 per month for 2 months, reduction to E-1, Bad Conduct discharge.
	CA 920804:  Sentence approved and, except for that part of the sentence adjudging any confinement in excess of 45 days is suspended for 12 months from 920313, at which time, unless the suspension is sooner vacated, the suspended part of the sentence will be remitted without further action.
	
920317:	Applicant waived clemency review {Extracted from NC&PB computer system}.

930224:	NMCCMR:  The findings of guilty and sentence, as approved on review, are affirmed.

930804:	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 separated from military service on 930913 with a Bad Conduct discharge, 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).

Issue A.  The Board was unable to interpret the applicant’s concerns in his first issue.  Before the Board can respond to an applicant’s issue, the issue must be written clearly, explaining why the discharge characterization and/or reason should be upgraded.  The applicant’s first issue does not meet that criteria.  Relief denied.

Issue B.  The Board determined this issue is without merit.  The applicant states he was young and easily influenced by the life style.  Youth and immaturity are no excuse for violating the UCMJ.  The applicant was old enough and mature enough to join the military.  He was held accountable for his misconduct and discharged appropriately.  The discharge was proper and equitable.  Relief denied.

Issue C.  The Board determined this issue is without merit.  The applicant claims his discharge was too harsh, knowing that he joined with a drug waiver.  The applicant’s drug waiver gave him an opportunity to clean up his act and serve his country honorably.  The applicant consistently failed to comply with the rules and regulations of the military.  He was found guilty of dereliction of duty, destruction of government property, breaking restriction, unauthorized absence, drug abuse and desertion.  The discharge was proper and equitable.  Relief denied.

Issue D.  The Board determined this issue is without merit.  The applicant claims, if he had been given a chance to regain control, maybe he would still be serving his country.  The applicant was given several opportunities to correct his behavior.  The applicant’s records show his misconduct began in November 1989 (two months after his enlistment) and continued for almost four years, until he was discharged in September 1993.  He had three NJPs, one retention warning, declared a deserter, then finally court martialed in March 1992.  The applicant had several opportunities to change his behavior prior to his court martial.  His retention warning notified him of the consequences of continued misconduct, what was expected of him and where he could get help, but the applicant failed to comply and failed himself.  The discharge was proper and equitable.  Relief denied.
   
Issue E.  The Board determined this issue is without merit.  The applicant claims he is drug free and a productive member of society.  The applicant did not provide any documentation to support his claim of being drug free and a productive citizen, at any time.  The discharge was proper and equitable.  Relief denied.

Issue F.  The applicant did not provide an issue F.

Issue G.  The Board determined this issue does not warrant changing the characterization of the applicant’s discharge.  The applicant claims his whole outlook of life is totally different and he would like the chance to start over to serve his country.  It is commendable the applicant feels dedicated to serve his country again but the Board does not feel compelled to upgrade the applicant’s discharge, to give him the opportunity to enter any branch of military service again, based on his word alone. The applicant did not provide any documentation to support his claim.  The discharge was proper and equitable. Relief denied.

Issue H.  The Board determined this is not a decisional issue, and requires no further comment.  Relief denied.

The applicant remains eligible for a personal appearance hearing provided an application is received at the NDRB within fifteen years from the date of his discharge.  Legal counsel is not required but advisable.

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