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

 ex-ABFAR, USN
Docket No. ND01-01003

Applicant’s Request

The application for discharge review, received 010730, 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. Subsequent to the application, the applicant retained representation from the Disabled American Veterans.

Decision

A documentary discharge review was conducted in Washington, D.C. on 020307.  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/Convicted by special court martial, authority: NAVMILPERSMAN, Article 3640420.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

1.  Dear Chairperson:

After a review of the Former Service Members (FSM) DD Form 293 Application for the Review of Discharge or Dismissal from the Armed Forces of the United States and all of the evidence assembled for review.  We ask for the Boards careful and sympathetic consideration of all the evidence of record used in rendering a fair and impartial decision.  These issues do not supersede any issues previously submitted by the applicant. Respectfully, Mr. (applicant) request a discharge upgrade from his current status of Bad Conduct to General/Under Honorable Conditions. Mr. (applicant) joined the Navy In September 1986 in the hopes of making a better life for himself.  His service is characterized as outstanding according to his proficiency and conduct marks.  He quickly worked his way through the ranks and after just a few short years reached the rank of E-4.  His work outstanding work performance is further supported by his ability to fill an E-5 billet with no supervision. Mr. (applicant's) supervisors characterized him as being dependable and capable of accomplishing any task give.  He continually went above and beyond the cal of duty.  He was recipient of the Battle "E" Ribbon, Meritorious Unit Commendation and the Armed Forces Expeditionary Medal.
Mr. (applicant) received a Special Court Martial for the wrongful use of methamphetamine, in which he pled guilty, accepting his responsibility for his actions.  During his Court Martial testimony was given by his supervisor and fellow shipmates in reference to his work abilities as well as him being an asset to the Navy.  Upon sentencing the residing judge sentenced Mr. (applicant) to Bad Conduct Discharge, however the Judge saw the potential that Mr. (applicant) had a recommended that the convening authority suspend the Discharge. Although Mr. (applicant) has had his trials and tribulations his work performance never swayed and his abilities as a sailor was nothing less than outstanding.  It is in this regard that we respectfully request an upgrade be granted.

Documentation

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

Copy of DD Form 214
Ten pages of applicant's statement
List of consequences (3 pages)
List of hospitalizations
List of treatment programs completed and professional applicant works with
List of probation officers
Copy of applicant's employment history
List of consequences applicant brought upon himself as a result of workaholic behavior
List of back treatment locations
Coy of decision from Social Security Administration dated December 13, 2000
Copy of compulsive gambling treatment discharge summary

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: USNR (DEP)	860213 - 860914	COG

Period of Service Under Review:

Date of Enlistment:  860915		Date of Discharge:  910226

Length of Service (years, months, days):

	Active:    04  05  12
	Inactive:  None

Age at Entry:  18			Years Contracted:  4

Education Level:  12			AFQT:  37

Highest Rate:  ABF3

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.80 (3)	Behavior:  3.53 (3)		OTA:  3.73

Military Decorations:  None

Unit/Campaign/Service Awards:  BER, MUC, AFEM, SSDR with 2 Stars

Days of Unauthorized Absence:  None

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

BAD CONDUCT/Convicted by special court  martial, authority: NAVMILPERSMAN, Article 3640420.

Chronological Listing of Significant Service Events:

860918:	Applicant briefed on Navy's policy on drug and alcohol abuse.

881213:	NJP for violation of UCMJ, Article 112A: Use methamphetamine on 23Nov88.
	Award: Forfeiture of $412 per month for 2 months, restriction for 60 days, reduction to ABFAN.  No indication of appeal in the record.

881213:	Retention Warning:  Advised of deficiency (You have committed one or more offenses against the Uniform Code of Military Justice (UCMJ), or you have been convicted of (an) offense(s) by civil court.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 

890301:	Drug and Alcohol Abuse Report: Amphetamines abuse.  Unit sweep urinalysis 881123.  DAPA recommended Level I treatment.  Commanding officer recommended retention.  Comments: 1. Member's past military work record is good.  2. Member's potential for future naval service is good.

900404:	NJP for violation of UCMJ, Article 112A: Wrongfully use methamphetamine on 19Mar90.
	Award: Forfeiture of $405 per month for 2 months, restriction and extra duty for 45 days, reduction to ABFAA.  No indication of appeal in the record.

900410:	Drug and Alcohol Abuse Report: Amphetamines abuse, less than monthly, ashore off duty.  Unit sweep urinalysis 900319.  DAPA and physician found applicant dependent and recommended separation via VA hospital.  Commanding Officer recommended separation via VA hospital.  Comments: 1. Member's past military work record is poor.  2. Member's potential for future naval service is poor.

900517:	Special Court Martial
	Charge I: violation of the UCMJ, Article 112A:
	Specification: Wrongful use of methamphetamine on 29Mar90.
	Findings: to Charge I and specification thereunder, guilty.
	Sentence: CHL for 30 days, forfeiture of $432 per month for 1 month, reduction to ABFAR, Bad Conduct discharge.
	CA 900711:  Sentence approved and ordered executed, except for bad conduct discharge.

900514:	Joined for confinement.

900610:	Applicant released from confinement and restored to full duty status.  Processed for appellate leave.

901105:	NMCCMR:  The findings of guilty and sentence, as approved on review, are affirmed.

910226:	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 910226 with bad conduct due to convicted by special court martial (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 1.  The Board agrees that the applicant had good evaluations and that the applicant was a hard worker throughout most of his tenure, but his performance prior to and during the drug abuse doesn’t mitigate his repeated use of illegal drugs.  The discharge was proper and equitable.  Relief denied.

Issue 2 (taken from applicant’s personal letter).  While the applicant may feel that being the victim of sexual abuse was a factor that contributed to his actions, the record clearly reflects his willful disregard for the requirements of military discipline and demonstrated that he was unfit for further service.  The record is devoid of evidence that the applicant was not responsible for his misconduct or that he should not be held accountable for his actions. Relief denied.

The applicant’s discharge characterization accurately reflects his service to his country.  Normally, to permit relief, an error or injustice must have existed during the period of enlistment in question.  No such error or injustice occurred during the applicant’s enlistment.  Additionally, 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 the service.  However, the NDRB is authorized to consider outstanding post-service factors in the recharacterization of a discharge, 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.  Verifiable proof of any post-service accomplishments must be provided in order for the applicant to claim post-service conduct and behavior as a reason to upgrade a less than Honorable discharge.  The applicant did not provide sufficient documentation to warrant an upgrade to his discharge.  He is reminded that he remains eligible for a personal appearance hearing, provided an application is received, at the NDRB, within 15 years from the date of his discharge.  The applicant can provide additional documentation to support any claims of post-service accomplishments at that time.  Legal representation at a personal appearance hearing is highly recommended but not required.  Relief denied.

Pertinent Regulation/Law (at time of discharge)

A.  The Naval Military Personnel Manual, (NAVPERS 15560A), Change 9, effective 14 Dec 89 until 14 Aug 91, 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 "afls10.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 Rm 309
		Washington Navy Yard DC  20374-5023