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

 ex-AR, USN
Docket No. ND02-00657

Applicant’s Request

The application for discharge review, received 020411, requested that the characterization of service on the discharge be changed to honorable.  The Applicant requested a documentary record discharge review.  The Applicant listed Disabled American Veterans as the representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 030116.  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've been separated from the military since March 1992 and I was told by military representative, by being out of service for ten years. Submitted my request for honorable discharge.

2.  (DAV Issue)  After a review of the Former Service Members (FSM) DD Form 293 Application for the Naval Discharge Review Board of Discharge or Dismissal from the Armed Forces of the United States and all of the evidence assembled for review, we continue to support the contentions as set forth by the Applicant, in his request that he be given the opportunity to upgrade his Bad Conduct Discharge to a General Discharge (Under Honorable Conditions) Discharge.

3. The (FSM) entered the Naval Military Service on May 31, 1989 until May 03, 1993 a period of over (3) years 09 months and 14 days.  During this period the (FSM) served with several Non-Judicial Punishments as well as a Special Court Martial for drug abuse infractions.  The (FSM) desires now to have his Bad Conduct Discharge up-graded to a General (Under Honorable Discharge from the Naval Authorities)
  
4. The (FSM) past behaviors he exhibited and long term of service that lead to his discharge he now feels he can be personally responsibility for and he realizes that he alone attributed to his immature behaviors and inability to handle the stressful military life that lead him to act out in appropriate ways and experiment with drug substances and abuse same while on active duty.

5. The (FSM) now respectfully requests that an equitable standard be applied as well as equity in treatment in seeking the board's approval to afford him the opportunity to receive and an up-grade of his Bad Conduct Discharge to a General (Under Honorable Conditions Discharge.  The (FSM) sincerely hopes that by respectfully requesting and being granted an Up-Grade of his Discharge and citing the reasons and explanation for his violations of his past military Naval Service Rules and policy and his subsequent dismissal from US Naval Services is the new start for him.

6. The (FSM) feels his military accomplishments of service are a matter of Supreme Honor and Respect he will cherish throughout his lifetime.  The (FSM) also states he had always tried to achieve Honor and Respect during his almost entire term of enlistment of military duty in the Navy Service, but just failed on this short period of enlistment.

7. We respectfully request that the (FSM) be given complete and duly consideration by the board.  We also respectfully request that the board consider each reasonable explanation submitted by the (FSM) who now wishes to seek to correct the mistakes he make and the negative behavior he exhibited and that occurred to him in fulfilling his military duty in the United States Naval Services.  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.

Documentation

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

Copy of DD Form 214

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	890526 - 890530	COG
	Active:   USN 		            None

Period of Service Under Review:

Date of Enlistment:  890531		Date of Discharge:  930503

Length of Service (years, months, days):

	Active:    03  09  14
	Inactive:  None

Age at Entry:  23			Years Contracted:  4 

Education Level:  12			AFQT:  18

Highest Rate:  AN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.30 (2)	Behavior:  3.20 (2)		OTA:  3.20

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM, SASMwb*, SSDR, CAR, LOA (2)

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:

901207:	Retention Warning:  Advised of deficiency (Your recent mast for violation of UCMJ, Article 112a, wrongful use of cocaine), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 

901207:	NJP for violation of UCMJ, Article 112a: Wrongful use of a controlled substance: cocaine.
	Award:  Forfeiture of $406.00 pay per month for 2 months, restriction and extra duty for 45 days, reduction to E-2.  No indication of appeal in the record.

901215:	DAAR indicates cocaine abuse as a result of a unit sweep urinalysis, found not dependent by medical officer, recommended for Level I Treatment and retention including NADSAP.

910112:	NJP for violation of UCMJ, Article 86: Specification 1: Fail to go to appointed place of duty, to wit: Restricted men's muster at 0715, 901227; Specification 2: 0615, 901224; Spec 3: 1745, 910102; Specification 4: 0615, 910103; Specification 5: 0615, 910107.
	Award:  Restriction for 35 days, extra duty for 35 days.  No indication of appeal in the record.

920122:	Special Court Martial 
	Charge I:  violation of the UCMJ, Article 112a (2) Specifications.
	Wrongfully use cocaine on or about 911018 and on or about 911104.
	Findings:  to Charge I and specifications 1 and 2 thereunder, guilty.
	Sentence:  CHL for 60 days, forfeiture of $520.00 pay per month for 2 months, reduction to E-1, Bad Conduct discharge.
	CA 920310:  Sentence approved and ordered executed, except for bad conduct discharge.

920123:	Applicant waived clemency review [Extracted from NC&PB computer system] 

920311:	Released from confinement and restored to full duty status and processed for appellate leave.

920908:	NMCCMR:  The findings of guilty and sentence, as approved on review, are affirmed.

930503:	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 930503 with a bad conduct discharge due to conviction 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).

Responding to the issues raised by the Applicant and his representative, the Board noted the following.   Normally, to permit relief, an error or injustice must have existed during the period of enlistment in question.  There is no law, or regulation, which provides that an unfavorable discharge may be upgraded based solely on the passage of time subsequent to leaving the service.  The Board also reminds the Applicant that relevant and material facts stated in a court-martial specification are presumed per regulation 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.  This clemency might be granted based on outstanding post-service factors.  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.  Examples of evidence the applicant could have produced includes continuing educational pursuits, a verifiable employment record, documentation of community service, certification of non-involvement with civil authorities and credible evidence of a substance free lifestyle in order for consideration for clemency based on post-service conduct.  Since the applicant provided no proof of any post-service conduct for which the Board might grant clemency, the Applicant’s request is denied.  The Applicant is reminded that he is 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.  Representation at a personal appearance hearing is recommended but not required.

Pertinent Regulation/Law (at time of discharge)

A.  The 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 19984 (Manual for Discharge Review, 1984) enclosure (1), Chapter 2, paragraph 2.24, COURT-MARTIAL SPECIFICATION, PRESUMPTION CONCERNING.

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