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

 ex-AKAR, USN 
Docket No. ND03-00696

Applicant’s Request

The application for discharge review was received on 20030313.  The Applicant requests the characterization of service received at the time of discharge be changed to honorable.  The Applicant requests a documentary record discharge review.  The Applicant did not designate a representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20040212.  After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, no impropriety or inequity in the characterization of the Applicant’s service was discovered by the NDRB.  The Board’s vote was unanimous that the character of the discharge shall not change.  The discharge shall remain: BAD CONDUCT/COURT MARTIAL CONVICTION, authority: NAVMILPERSMAN, Article 3640420.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

1.  “Dear Sir/Madam

I’m writing this letter with the most humble heart.  The burden of carry this Bad Conduct has been heavy to a bear.  I will attempt to lay before you the reason for my action.  The way I see them now and the pressure that I was under.

During the last years of active service I was under a server drug problem.  With no way in my mind to get help, but deal with it.  I was terrible afraid to go to my superiors and asked for help for fear of being discharged.  This irrational thinking caused me to try and deal with this on my own and the problem just got worst.  

This is not a cry for benefits, with this Bad Conduct discharge I feel like an incomplete person.  I’m requesting the board to make me whole again.

After I was discharged I lost my bearing in the world like so many other veterans but I found my course again through becoming a Born Again Christian at the Los Angeles mission.  Through the Faith based Drug and Alcohol treatment program we have here and through the spiritual guidance of my lord and savior.  I was able to beat the affection of drug abuse that caused me to throw away an excellent career up until them.

I think if I would have gotten the medical and psychological attention required for drug use things my have been different.

In my position at the Los Angeles Mission I get to counsel many individual with drug addiction problems and pass on my experience in relations to what they are going trough.

Not only have I been off drugs for over Six years I have continued my education, attend Church on a regular basis and maintain a positive standing in the community.

In summary I would like to assume all responsibility for my actions with extenuating circumstance of Drug Abuse.  I lost almost full retirement benefits with my actions someone would have to be temporarily insane to throw all that away if he or she was in sound state of mind.

I throw myself on the mercy of the board and ask, ‘please make me Honorable again?’

Respectfully,  Signed by J_ E_ S_ (Applicant)”

Documentation

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

Copy of DD Form 214 (period 88JAN07-95AUG14)
Copy of DD Form 214 (period 81DEC31–88JAN06)
Copy of DD Form 214 (period 76OCT08-81DEC30)
Character Reference ltr from J_ S_, Career Employment Supervisor, dtd Aug 22, 2001
Letter of Recommendation from A_ V. C_, Director of Community Relations, dtd Aug 20, 2001
Completion of Rehabilitation Treatment ltr from M_ W_, Chaplain, dtd Aug 14, 2001
Equifax Credit File, dtd Jun 25, 2002
Applicant’s Résumé

PART II - SUMMARY OF SERVICE

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

	Inactive: None
	Active:   USN 			731009 - 761007	HON
761008 – 811230	HON
811231 - 880106	HON

Period of Service Under Review:

Date of Enlistment:  880107		Date of Discharge:  950814

Length of Service (years, months, days):

	Active:    07  07  08 (Doesn’t exclude lost time, confinement, appellate leave, etc.)
	Inactive:  None

Age at Entry:  35			Years Contracted:  6 (extended 5 months)

Education Level:  12			AFQT:  32

Highest Rate:  AK1

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.92 (5)	Behavior:  3.84 (5)		OTA:  3.96

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM, SSDR (4), GCM (3), Battle “E” Ribbon (2), OSR

Days of Unauthorized Absence:  990

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

BAD CONDUCT/COURT MARTIAL CONVICTION, authority: NAVMILPERSMAN, Article 3640420.

Chronological Listing of Significant Service Events:

880107:	Reenlisted for 6 years at Naval Air System Command, Washington, D.C.

900507:	Unauthorized absence from ANTARCTICDEVRON SIX at Pt. Mugu.

900514:	Surrendered on board this date (7 days/S).

900620:	NJP for violation of UCMJ, Article 86:  Unauthorized absence.
	Award:  Forfeiture of $870 pay per month for 2 months (1 month suspended for 6 months), reduction to E-5 (suspended for 6 months).  No indication of appeal in the record.

900620:	Retention Warning:  Advised of deficiency (unauthorized absence), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

900823:	Punishment of RIR to AK2 and forfeiture $695 pay for 1 month, suspended at CO’s NJP of 90JUN22 vacated due to continued misconduct.

900825:	NJP for violation of UCMJ, Article 86:  Unauthorized absence.
	Award:  Forfeiture of $695 pay per month for 1 month.  No indication of appeal in the record.

900825:	Retention Warning:  Advised of deficiency (unauthorized absence), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

900921:	Admission (Naval Hospital, Long Beach), Alcohol Rehabilitation Department:  Pt referred to Alcohol Rehabilitation Dept by himself due to numerous alcohol related incidents.
	Discharge Diagnosis:  Alcohol Dependence, Adult Child of an Alcoholic 
	Discharge Medications:  Antabuse 250mg po qd, Thiamine 50mg po qd, Multivitamins one po qd.
	Disposition:  Pt returned to duty, to be placed in a one year after care program.  Pt should not be assigned primary or collateral duties in a command drug and alcohol abuse program for minimum of two years following treatment.  Pt should be held strictly accountable for his actions.  In addition, due to a secondary diagnosis of Adult Child of an alcoholic, the pt should attend two meetings each per week.
	901102:  Discharged to duty with the above recommendations.

920608:	Unauthorized absence this date.

920611:	Returned from unauthorized absence (3 day/S).

920720:	Unauthorized absentee from Naval Air Weapons Station China Lake, CA on or about 0730, 20 Jul 92.

920827:	Report of Declaration of Deserter (NAVPERS 1600-3).  Applicant declared a deserter on 92AUG20 having been an unauthorized absentee since 0730, 92JUL20 from Naval Air Weapons Station, China Lake, CA.

940919:	Report of Return of Deserter.  Applicant apprehended by civil authorities on 94SEP19 (1445) at Los Angeles, CA. Returned to military control 94SEP19 (2203).  Delivered to Los Angeles, CA.  Retained on board for disciplinary action.  Member in pretrial confinement a NAVCONBRIG Miramar.

940919:	Pre-trial confinement.

941108:	Medical Dept., NAVCONBRIG Miramar:  Received this date for confinement.  

941123:	Special Court Martial 
	Charge I:  violation of the UCMJ, Article 86 (2) Specifications.
	Specification 1:  Unauthorized absence 92JUN8 – 92JUN11, [3 days/S].
	Specification 2:  Unauthorized absence 92JUL20 – 94SEP19, [826 days/A].
	Charge II:  violation of the UCMJ, Article 92:  On or about 92DEC11, violate a lawful general order, to wit:  paragraph 6b, Secretary of the Navy Instruction 5300.28B, dated 11JUL90, by wrongfully possessing drug abuse paraphernalia, to wit:  three crack cocaine pipes.
	Findings:  to Charge I and specifications 1 and 2 thereunder, guilty, to Charge II and specification thereunder, not guilty.
	Sentence:  Confinement for 65 days, reduction to E-1, Bad Conduct discharge.
	CA 950131:  Sentence approved and ordered executed, except for bad conduct discharge.  Member given day-for-day credit for time served in lawful pretrial confinement.
	SA:  see SSPCMO.

941123:	Joined Naval Consolidate Brig, NAS Miramar, San Diego, CA, for confinement.

941213:	Naval Station Branch Clinic, San Diego, CA:  Substance Abuse/ Dependency Screen.  Referred by DAPA.  Pt was found to be alcohol dependent in 1990, went to Level III and took Antabuse 250mg, did while in hospital for 2 months, no more incidents or abuse since.  No abuse or dependency since 1990, no treatment needed.

Undated:	From confinement; to appellate leave. 

950207:	Joined for record purposes only to NAMALA, Washington, D.C.

950428:	NMCCCA:  The findings of guilty and sentence, as approved on review, are affirmed.  

950814:	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 19950814 with a bad conduct discharge which was the sentence adjudged by a properly convened special court-martial.  That sentence was subsequently approved by both the convening and appellate review authorities (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:  The NDRB is restricted to upgrades based upon clemency only for a court-martial case tried under the Uniform Code of Military Justice (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 service records that the Board reviewed showed no mitigating or extenuating factors sufficient to offset the seriousness of the offenses for which the discharge was awarded.  Relief is therefore denied.

The following is provided for the edification of the Applicant.  There is no law or regulation that provides for an unfavorable discharge to be upgraded based solely on the passage of time or good conduct in the civilian life subsequent to leaving the service.  However, the NDRB is authorized to consider post-service factors in the recharacteriza-tion of a discharge.  Outstanding post-service conduct, 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 may be considered.  Verifiable proof of 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 credible evidence of a substance-free lifestyle are examples of verifiable documents that may be provided to receive consideration for relief based on post-service conduct.  At this time, the Board determined that the documentation submitted by the Applicant does not mitigate his misconduct while on active duty.  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.  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.  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 86, unauthorized absence for more than 30 days, and Article 92, wrongfully possessing drug abuse paraphernalia.

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 Rm309
		Washington Navy Yard DC  20374-5023