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

 ex-AMSAR, USN
Docket No. ND02-00506

Applicant’s Request

The application for discharge review, received 020308, requested that the characterization of service on the discharge be changed to honorable.  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 021206.  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, as submitted

1.  I would like to ask the board to upgrade my discharge to Honorable Conditions due to the fact that my discharge was inequitable and based on one isolated incident in 96 months (8 Years) of service.  After I returned from Desert Storm I found my wife living with someone else.  At that point my service began to show signs of trouble.  I could not get over it and started drinking too much as you can see in my service at NAS Bermuda.  The command at NAS Bermuda sent my wife and 1 year old son off the Island because my wife had claimed abuse which never happened and was never investigated before she left.  She and my son disappeared for 3 years I nor the command had any idea where she was.  When I transferred to NAS Oceana a private investigator found my wife in Miami with my son.  We took her to court and she was found unfit and I now have full custody of my son.  I believe my family problems and NAS Bermuda's lack of abuse investigation caused me to loose my son for 3 years.  This led to my heavy drinking and loss of my good judgment at work and to my mistakes at NAS Oceana and my Court Martial Conviction.  I was always a superior sailor before my family problems started.  Since my discharge in 1997 I have become very active in my community I am a member in good standing, having paid my due to the following affiliations: Grand Lodge of New York Free & Accepted Masons, Great Kill Lodge No 912, Order of Eastern Star, Philalethes Society, Masonic War Vets post 6, VFW, American Legion, Loyal Order of Moose, Fraternal Order of Eagle, Staten Island children Museum, and The Staten Island Zoological Society.  I am currently enrolled in DeVry College in North Brunswick NJ and will attain an Associate in Applied Science in June of 2002.  I am the Founder and Executive Director of Humanity United, a Non For Profit Charity based in NY to help needy children (www.Humanity-United.com).  I am also active in my Church and I am an ordained Reverend Minister.  As you can see I have gotten my life back together and would like to have my discharge upgraded to remove that blemish from my past.  May you see that I am Worthy and Well Qualified for an upgrade also.

Documentation

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

Copy of Great Kill Lodge #912 Membership Certificate
Copy of Ordained Minister Certificate
Copy of Masonic War Veterans Membership Certificate
Copy of Student ID Card from DeVRY College of Technology  
Copy of Philalethes Society Membership Certificate
Copy of Grand Lodge Membership Certificate
Copy of DD Form 214
Copy of Lodge Council Chapter Consistory Membership Certificate
Copy of Veterans of Foreign Wars Life Membership Certificate
Copy of Fraternal Order of Eagles Membership Certificate 

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	880729 - 880818	COG
	Active:   USN 		880819 - 920723	HON

Period of Service Under Review:

Date of Enlistment:  920724		Date of Discharge:  960723

Length of Service (years, months, days):

	Active:    03  11  29
	Inactive:  None

Age at Entry:  24			Years Contracted:  4 

Education Level:  12			AFQT:  79

Highest Rate:  AMS3

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.90 (6)	Behavior:  3.53 (6)		OTA:  3.83

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM, SSDR (2ND), BATTLE"E"RIBBON (2ND), JMUC, NUC, KLM, OSR (2ND), SASM, GCA, LOA (2)

Days of Unauthorized Absence:  96Jun20-96Aug7 (48 days) and 96Aug13-97Jul23 (341 days) [Extracted from DD Form 214]

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:

920724:	Reenlisted onboard USS THEODORE ROOSEVELT (CVN-71) for 4 years.

940523:	NJP for violation of UCMJ, Article 92: Failure to obey lawful order, violation of UCMJ, Article 112: Incapacitated, violation of UCMJ, Article 134: Conduct prejudicial to good order and discipline.
	Award:  Forfeiture of $100.00 pay per month for 1 month, restriction duty for 14 days, reduction to E-3 (suspended for 6 months).  No indication of appeal in the record.

940909:	NJP for violation of UCMJ, Article 134: Adultery.
	Award:  Reduction to E-3 (suspended for 6 months).  No indication of appeal in the record.

960620:	Special Court Martial [trial date 960620]
	Charge I:  violation of the UCMJ, Article 81: Conspiracy to steal various tools the sum of about $1900.00.  Charge II:  violation of the UCMJ Article 108: Wrongful selling or giving away various tools.  Charge III:  violation of the UCMJ Article 121: Wrongfully steal various tools of a value of $1,100.00.  Charge IV:  violation of the UCMJ, Article 134: Wrongfully receiving various stolen tools.
	Findings:  to Charge I, specification 1, not guilty.  To Charge II, specification 1, guilty.  To Charge III, specification 1, guilty.  To Charge IV, specification 1, guilty.
	Sentence:  CHL for 60 days, forfeiture of $400.00 pay per month for 2 months, reduction to E-1, Bad Conduct discharge.
	CA 960926:  Sentence approved and ordered executed, except for bad conduct discharge.
	
960808:	Released from confinement and restored to full duty status.

970226:	NMCCCA:  The findings of guilty and sentence, as approved on review, 
	are affirmed.

970711:	COMA:  Request for appeal denied.

970723:	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 in absentia on 970723 with a bad conduct discharge as a result of his 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).

The Applicant states he had successfully completed almost eight years of service prior to the "incident" that lead to his discharge.  The Naval Discharge Review Board is only authorized to examine the enlistment during which the discharge was awarded.  Prior honorable service is not a basis for relief.

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. (B, Part IV)   The Applicant's case was considered under the pertinent standards of equity to determine if any factors in this particular case merited clemency.  The NDRB found the Applicant’s service record devoid of any mitigating or extenuating factors sufficient to offset the seriousness of the offenses for which the discharge was awarded.  

The Applicant contends his disciplinary problems began as a result of family problems.  The NDRB recognizes that serving in the U.S. Navy is challenging.  Our country is fortunate to have men and women willing to endure the hardships and sacrifices required in order to serve their country.  It must be noted that most members of the Navy serve honorably and therefore earn their honorable discharges.  In fairness to those members of the Navy, commanders and separation authorities are tasked to ensure that undeserving Sailors receive no higher characterization than is due.  The NDRB agrees that the Applicant's service was properly and equitably characterized.

The Board found the Applicant was of sound mind when he committed his misconduct.  While he may feel that his problems with alcohol were the underlying cause of his misconduct, the record clearly reflects his willful misconduct and demonstrated he was unfit for further service.  Alcohol abuse is never a defense to misconduct.  The record is devoid of evidence that the Applicant was not responsible for his conduct or that he should not be held accountable for his actions.  Relief on this basis is denied.

Normally, to permit relief, the discharge or characterization of the Applicant's service had to be improper or inequitable.  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.  Although commendable, the Applicant's post-service documentation does not overcome his misconduct.  Relief denied.

The Applicant is reminded that the period of eligibility for a personal appearance hearing is 15 years from the date of discharge.  The application package must be submitted to the NDRB prior to the expiration of the 15-year period.  The Applicant can provide additional documentation to support any claims of post-service accomplishments at that time.  Representation at a personal appearance hearing is recommended but not required.

Pertinent Regulation/Law (at time of discharge)

A.  Naval Military Personnel Manual, (NAVPERS 15560C), Change 14, effective 
03 Oct 96 until 14 Dec 98, 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 Rm 309
		Washington Navy Yard DC  20374-5023