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

ex-BMSR, USN
Docket No. ND02-01233

Applicant’s Request

The application for discharge review, received 020828, requested that the characterization of service on the discharge be changed to general/under honorable conditions or entry level separation or uncharacterized.  The Applicant requested a documentary record discharge review.  The Applicant listed a member of Congress as his representative on the DD Form 293.  In the acknowledgement letter to the Applicant, he was informed that members of congress do not represent Applicants before the Board and that written authorization must be obtained from the Congressman.  Such authorization was not received; therefore the case was reviewed without representation.

Decision

A documentary discharge review was conducted in Washington, D.C. on 030612.  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 was hurt in a work related injury in Aug 2000 and I was terminated from insurance coverage.  I applied for health benefits from the VA in Nov of 2000. I had a Honorable discharge from 1982 – 1986. I had a Dishonorable discharge from 1986 – 1989.  VA accepted the Honorable discharge from 1982 – 1986.  I was receiving treatment in the Wilmington, Delaware VA from Dec 2000 to Aug 2002.  I was told from Mrs. E_ P_ in eligibility office on July 9, 2002 that I was ineligible for medical care because of the period from 3-12-86 – 04-16-89, because of a new billed passed.  I served Honorable the first four years of my enlistment.  I am asking for help for medical treatment.  I am asking for help through Congressman R_ E. A_.

Documentation

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

Copy of DD Form 214 (82MAR12 – 86FEB05)
VA, Wilmington, DE, ltr dtd Feb 7, 2002, concerning Applicant’s ineligibility
VA’s ltr dtd Feb 7, 2001, concerning Applicant’s health care enrollment
Wilmington VAMROC Outpatient Notes dtd Jan 10, 2002
Wilmington VAMROC Outpatient Notes dtd May 09, 2002
VA’s Statement of Patient’s Treatment dtd Apr 10, 2002

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	820220 - 820311	COG
	Active:   USN			820312 - 860205	HON

Period of Service Under Review:

Date of Enlistment:  860206		Date of Discharge:  890406

Length of Service (years, months, days):

	Active:    03  02  01 (Doesn’t exclude lost/confinement time.)
	Inactive:  None

Age at Entry:  24			Years Contracted:  4

Education Level:  13			AFQT:  54

Highest Rate:  BM2

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:  SSDR, NEM, GCA

Days of Unauthorized Absence:  27

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:

860206:	Reenlisted for a term of four years on-board USS GLOVER (FF-1098) at Norfolk, VA.

871030:	NJP for violation of UCMJ, Article 112A:  Wrongful use of a controlled substance.
	Award:  Forfeiture of $627 per month for 2 months, restriction and extra duty for 45 days, reduction to E-4.  No indication of appeal in the record.

880202:	Unauthorized absence from USS GARCIA at Philadelphia, PA.  Intentions unknown.

880229:	Apprehended by civil authorities at 1940 by Philadelphia Police Dept.
	Delivered to military jurisdiction at USS GARCIA (FF 1040) at 2021 this date.  Transferred to Navy Brig Philadelphia at 0050, 88MAR01 for pre-trial confinement.

880301:	Pre-trial confinement at Naval Brig Philadelphia.

880324:	Special Court-Martial. 
	Charge I:  violation of the UCMJ, Article 86
Specification – Unauthorized absence from 2FEB88 – 29FEB88.
	Charge II:  violation of the UCMJ, Article 112A
	Specification – Wrongfully used cocaine. 
	Findings:  to Charges I and II and specification thereunder, guilty.
	Sentence:  Confinement for 55 days, forfeiture of $300 per month for 5 months, reduction to E-1, bad conduct discharge.
	CA 880615:  Sentence approved and ordered executed, except for bad conduct discharge and the execution of that part of the sentence adjudging confinement in excess of 45 days is suspended for 12 months from 24 March 1988.
	SA:  see SSPCMO.

880324:	Joined Naval Brig, Naval Station, Philadelphia, PA, for confinement.

880406:	From confinement; to appellate leave.

880830:	NMCCMR:  The findings of guilty and sentence, as approved on review, are affirmed.

890301:	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 890406 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 and (B).  The Board presumed regularity in the conduct of governmental affairs (C).  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 (D and E).

Issue 1.  With respect to a discharge adjudged by a court-martial case, the action of the NDRB is restricted to upgrades based on clemency (C, 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 and documentation provided by the Applicant devoid of any mitigating or extenuating factors sufficient to offset the seriousness of the offenses for which the discharge was awarded.  The Veterans Administration determines eligibility for post-service benefits, not the NDRB.  There is no requirement or law that grants recharacterization solely on the issue of obtaining veterans’ benefits and this issue does not serve to provide a foundation upon which the Board can grant relief.
Relief denied.

The Applicant 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.  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 15560A), effective 15 Jun 87 until 13 Dec 89, Article 3640420, DISCHARGE OF ENLISTED PERSONNEL ADJUDGED BY SENTENCE OF COURT‑MARTIAL.

B.  The Manual for courts-martial authorizes the award of a punitive discharge if adjudged as part of the sentence upon conviction by a special or general court martial for violation of the UCMJ, Article 112a, illegal drug use.

C.  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.  

D.  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.

E.  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 D.C.  20374-5023