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

 ex-FR, USN
Docket No. ND02-01195

Applicant’s Request

The application for discharge review, received 020821, requested that the characterization of service on the discharge be changed to general/under honorable conditions.  The Applicant requested a personal appearance hearing discharge review before a traveling panel.  The Applicant listed Veterans of Foreign Wars as the representative on the DD Form 293.  In the acknowledgement letter to the Applicant, he was informed that the Naval Discharge Review Board (NDRB) does not travel, all hearings are held in the Washington, D.C. Area.

Decision

A personal appearance discharge review hearing was conducted in Washington, D.C. on 030513.  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 four to one 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 have been out of the service for years.  I was young when I went in I made mistakes however I have turned my life around.  Please give me relief.

I stopped drinking & drug abuse I have passed drug tests at work.  I do volunteer work for neighbors I have coached little league football.  I try to attend church I have had a clean record with the police Dept in our local town for years.  I have been married for 11 years, father of three children also, with same employer for years.  Please give me relief.

Post service conduct.

Documentation

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

DD Form 149
Letter from Applicant 
Letter of recommendation from P_ E. B_
Letter of recommendation from H. W. J_
Drug screening certification dated June 18, 2002
Letter of recommendation from W_ L. C_
Letter of recommendation from L_ H_
Letter of recommendation from A_ D. N_

PART II - SUMMARY OF SERVICE

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

	Inactive: USMCR (J)		850522 - 851107	ELS (due to drug abuse)
Inactive: USNR (DEP)	851129 - 851209	COG
	Active:   None

Period of Service Under Review:

Date of Enlistment:  851210		Date of Discharge:  901126

Length of Service (years, months, days):

	Active:    04  11  17 (Doesn't exclude lost/confinement time.)
	Inactive:  None

Age at Entry:  19			Years Contracted:  4 

Education Level:  12			AFQT:  52

Highest Rate:  FN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.60 (3)	Behavior:  3.27 (3)		OTA:  3.53

Military Decorations:  None

Unit/Campaign/Service Awards:  Navy "E" Award, SSDR

Days of Unauthorized Absence:  43

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:

860313:	NJP for violation of UCMJ, Article 92: Failure to obey other lawful written order on 860308, to wit: wrongfully calling black people "nigger" or words to that effect, violation of UCMJ, Article 108: (2 Specifications): Specification 1: damaging, destroying or losing military property on 860308, to wit: willfully damage by breaking a glass window, property of the United States, Specification 2: damaging, destroying or losing military property on 860308, to wit: willfully damage by breaking a glass window of a government vehicle, property of the United States, violation of UCMJ, Article 128: assault consummated by a battery on 860308, to wit: unlawfully strike OS1 L_ in the shoulder with fist; violation of UCMJ, Article 134: communicating threat on 860308, to wit: wrongfully communicate to LT G_ a threat to injure him.
	Award:  Forfeiture of $295.00 pay per month for 2 months, restriction and extra duty for 30 days.  No indication of appeal in the record.

860313:	Retention Warning:  Advised of deficiency (failure to obey order, destroying government property (2 Specs) assault, battery and communicating a threat), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 

870108:	NJP for violation of UCMJ, Article 134: Wrongfully possess another's military ID card on 861025.
	Award:  Forfeiture of $300.00 pay per month for 2 months ($150.00 pay per month for 2 months suspended for 6 months), restriction and extra duty for 30 days, reduction to E-1 (suspended for 6 months).  No indication of appeal in the record.

870113:	Retention Warning:  Advised of deficiency (wrongful use of another's military ID Card), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 

870514:	NJP for violation of UCMJ, Article 86: Unauthorized absence from 0715 870401 to 1200 870422 (22 days/S).
	Award:  Forfeiture of $200.00 pay per month for 2 months (suspended for 6 months), restriction and extra duty for 30 days.  No indication of appeal in the record.

870723:	NJP for violation of UCMJ, Article 134: Drunk and disorderly conduct on board Naval Station Long Beach on 870702, violation of UCMJ, Article 117: Wrongful use of reproachful words toward a Long Beach Military Police woman on 870702.
	Award:  Forfeiture of $383.00 pay per month for 2 months, restriction and extra duty for 45 days.  No indication of appeal in the record.

870819:	Retention Warning:  Advised of deficiency (drunk and disorderly), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 

890119:	NJP for violation of UCMJ, Article 112a: (2 Specifications), Specification 1: wrongful use of a controlled substance, methamphetamine, at Naval Station Long Beach, CA on or about August 88; Specification 2: wrongful use of a controlled substance, cocaine, at Naval Station Long Beach, CA on or about August 88.
	Award:  Forfeiture of $370.00 pay per month for 2 months, restriction and extra duty for 45 days, reduction to E-2.  No indication of appeal in the record.

890131:	DAAR: Random urinalysis, positive for cocaine abuse, date of incident 890106.  Below average both professionally and militarily, no potential for further naval service.  Determined drug dependent.  Recommended for separation via VA hospital.

890607:	Medical Board Proceedings cancelled due to disciplinary actions.

890615:	Unauthorized absence from Naval Station, Long Beach, CA at 0730, while TAD to Naval Hospital, Long Beach, CA.  Intentions unknown.

890706:	Surrendered to military authorities at 1130 at Customer Service Desk, Houston, TX (satellite office of PSD Corpus Christi/Houston, TX).

890707:	Applicant transferred under technical arrest orders to Naval Station, Long Beach, CA.  Retained onboard for disciplinary action/disposition (21 days).

890830:	Special Court-Martial.
	Charge I:  violation of the UCMJ, Article 86, 2 Specifications.
	Specification 1:  Unauthorized absence 890615 – 890706, [21 days/S].
	Specification 2:  Unauthorized absence 890731 - 890801.  Charge II: violation of the UCMJ, Article 112a: 3 Specifications.  Specification 1: At or near Naval Hospital Long Beach wrongfully use a controlled substance, to wit: crystal methamphetamine.  Specification 2: At or near Naval Hospital Long Beach wrongfully distribute 1/4 gram of crystal methamphetamine.  Specification 3: At or near Naval Hospital Long Beach wrongfully use a controlled substance, to wit: cocaine.  Charge III:  violation of the UCMJ, Article 121: On or about 890614 did steal U.S. Currency, of a value of about $50.00.  Charge IV:  violation of the UCMJ, Article 134: Having been restricted to limits of Naval Station, Long Beach, on or about 890731, break said restriction.
	Findings:  to Charge I and specifications 1 and 2 thereunder, guilty.  To Charge II and specifications 1, 2 and 3 thereunder, guilty with substituted wording.  To Charge III and specification, guilty with substituted wording.  To Charge IV and specification, not guilty.
	Sentence:  Confinement for 3 months, forfeiture of $466.00 pay per month for 3 months, reduction to E-1, bad conduct discharge.
	CA 891030:  Sentence approved and ordered executed, except for bad conduct discharge.
	SA:  see SSPCMO.

890830:	To confinement.

890914:	From confinement; to appellate leave.

900330:	NMCCMR:  The findings of guilty and sentence, as approved on review, are affirmed.  The court-martial order incorrectly reflects that Appellant plead guilty and was found guilty of Specification 2 of Charge I.  It is also inaccurate as to the quantum of confinement and forfeitures adjudged.  A corrected court-martial order is directed that accurately recounts that as to Specification 2 of Charge I, appellant plead not guilty and was found guilty; the order shall also indicate that the sentence adjudged included confinement for four months, forfeitures of $466.00 per month for four months, reduction to pay grade E-1, and a bad conduct discharge.

900410:	NC&PB clemency not granted; restoration denied.

901126:	SSPCMO:  Article 71c, UCMJ, having been complied with, bad conduct discharge ordered executed.		

020619:	NDRB documentary record review Docket Number ND01-00796 conducted.  Determination:  discharge proper and equitable; relief not warranted.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 901126 with a bad conduct discharge which was the sentence adjudged by a properly constituted special court-martial that was determined to be legal and proper, affirmed by appellate review authority and executed (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).

Issue 1.  The Applicant’s discharge characterization accurately reflects his service to his country.  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, employment record, documentation of community service, certification of non-involvement with civil authorities and credible evidence of a substance free lifestyle, are examples of verifiable documentation that may be provided to receive consideration for relief, based on post-service conduct.  The Applicant’s evidence of post-service conduct was found to be not sufficient to offset the seriousness of the offenses for which the discharge was awarded.  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 "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