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

ex-BMSR, USN
Docket No. ND02-00047

Applicant’s Request

The application for discharge review, received 011003, 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 020517.  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: UNDER OTHER THAN HONORABLE CONDITIONS/Misconduct – Drug abuse (Use), authority: NAVMILPERSMAN, Article 3630620.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues (verbatim)

1.  On or about 13 October 1992 myself and two former shipmates were on liberty and visited the then Naval Base (Charleston) Club.  After being there for few minutes I was assaulted by a group of men I did not know nor did I understand why.  Realizing we were outnumbered and unaware of the whereabouts of any type of shore patrol or security we left the club headed toward a shipmates vehicle.  We were followed by those unknown men, and that’s when I retrieved the loaded .25 from the glove compartment.  My intention in getting the gun from the glove compartment was not to cause harm to these men but to frighten them and steer them clear of any further aggressive action against me and my friends.  At no time before, during, or after did I discharge the firearm.  I do however, regret the decision I made in the first place to retrieve the weapon.  I also understand that it was wrong to have a loaded or concealed weapon either on my person or in a vehicle on any military installation.  Therefore, I must agree, at the time my punishment was adequate and some may consider lenient.  After consulting with military counsel on my case I became scared and I was UA for approximately 27 days before willfully returning to my command, USS Klakring FFG-42.  I was sentenced to 6 months, forfeiture of pay for 6 months, reduced to E-1, and discharge was a bad conduct discharge. My discharge was upgraded to an OTH by the Commander of the Charleston Naval Base after I wrote him a letter expressing my regret in dishonoring the Base, my command, and fellow shipmates.  To this day I regret the whole incident and I'm deeply sorry for my actions which I should have had more control over.  Over the years I have suffered for these actions.  I truly have learned for my own well being and others that violence and guns are not for me nor are they productive tools, except in a time of war.  During my service duty I did receive the National Defense Service Medal, Southwest Asia Service Medal with Bronze star, Sea Service Deployment Ribbon, and Letter of Appreciation.  Before my reduction in rate I did have the rank of 3rd Class Petty Officer.  Before this incident happened I believe I served my country well.  If my country needs me I will not hesitate to give my life for my country.  Respectfully, I'm asking for a second chance.  An upgrade in Discharge during this time in my life would be helpful and truly appreciated.  That being said, I respectfully request an upgrade in discharge.  Any consideration taken upon this matter I greatly appreciate, Thank you.  Sincerely,

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:   None
	Inactive: USNR (DEP)	881130 - 890619	COG

Period of Service Under Review:

Date of Enlistment:  890620		Date of Discharge:  930701

Length of Service (years, months, days):

	Active:    04  00  12
	Inactive:  None

Age at Entry:  18			Years Contracted:  4

Education Level:  12			AFQT:  54

Highest Rate:  BM3

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.87 (3)	Behavior:  3.87 (3)		OTA:  3.87

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM, SSDR, SASM with 1 Bronze Star

Days of Unauthorized Absence:  30

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

UNDER OTHER THAN HONORABLE CONDITIONS/Misconduct – Drug abuse (Use), authority:  NAVMILPERSMAN, Article 3630620.

Chronological Listing of Significant Service Events:

890621:	Applicant briefed on Navy's policy on drug and alcohol abuse.

891026:	Applicant to unauthorized absence 0730, 26Oct89.

891031:	Applicant from unauthorized absence 1230, 31Oct89 (5 days/surrendered).

900816:	NJP for violation of UCMJ, Article 112A: Wrongful use of a controlled substance, to wit: codeine, while on board the USS KLAKRING.
	Award: Restriction and extra duty for 30 days, reduction to BMSR.  Reduction suspended for 6 months.  No indication of appeal in the record.

911129:	Applicant unauthorized absence 0730 - 0800, 29Nov91.

921211:	Applicant declared a deserter.

930115:	General Court Martial
	Charge I: violation of the UCMJ, Article 91:
	Specification: Disobey a lawful order on 13Oct92.
Charge II: violation of the UCMJ, Article 92 (2 specs):
	Specification 1: Violate a lawful general regulation by wrongfully possessing a loaded and concealed firearm within the naval base on 13Oct92.
	Specification 2: Violate a lawful general regulation by wrongfully possessing a dangerous and concealed firearm within the naval base on 13Oct92.
	Charge III: violation of the UCMJ, Article 116:
	Specification: Breach of peace by wrongfully waiving a loaded handgun at a crowd on 13Oct92.
	Charge IV: violation of the UCMJ, Article 128:
	Specification: Assault upon a senior petty officer by pointing at him with a loaded firearm.
	Charge V: violation of the UCMJ, Article 134:
	Specification: Unlawfully carry on or about his person a concealed weapon, a loaded handgun on 13Oct92.
	Charge VI: violation of the UCMJ, Article 86:
	Specification: Absent from his unit from 0700, 2Dec92 until 0100, 28Dec92 (25 days/surrendered).
	The military judge considered Specifications 1 and 2 of Charge II multiplicious for sentencing.  The military judge further considered Charge III and its specification multiplicious for sentencing with Charge IV. 
	Findings: to Charge I, II, III and IV and specifications thereunder, guilty.
	Sentence: Confinement for 6 months, forfeiture of $400 per month for 6 months, reduction to BMSR.
	CA 930319:  Sentence approved and ordered executed, except for bad conduct discharge is suspended for 6 months.

930115:	Applicant to confinement.

930525:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to commission of a serious offense and misconduct due to drug abuse.

930526:	Medical evaluation for drug abuse found the applicant to be a drug abuser, not drug dependent.  

930527:	Applicant advised of his rights and having consulted with counsel certified under UCMJ Article 27B, elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation.

930610:	Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to commission of a serious offense and misconduct due to drug abuse (use).

930614:	Applicant released from confinement and put on administrative leave.

930628:	BUPERS directed the applicant's discharge under other than honorable conditions by reason of misconduct due to drug abuse (use).

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 930701 under other than honorable conditions for misconduct due to drug abuse (use) (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. 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.  The applicant was discharged for the commission of a serious offense and drug abuse. The applicant used illegal drugs.  Involuntary separation for drug abuse normally occurs under other than honorable conditions.  The discharge was proper and equitable.  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.  Evidence of continuing educational pursuits, an employment record, documentation of community service, certification of non-involvement with civil authorities and proof of his not using drugs, are examples of verifiable documents that should have been provided to receive consideration for relief, based on post-service conduct.  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.  Navy Military Personnel Manual, (NAVPERS 15560C), Change 5/93, effective 05 Mar 93 until 21 Jul 94, Article 3630620, SEPARATION OF ENLISTED MEMBERS BY REASON OF MISCONDUCT DUE TO DRUG ABUSE.

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