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

 ex-SR, USNR  
Docket No. ND03-00749

Applicant’s Request

The application for discharge review was received on 20030324.  The Applicant requests the characterization of service received at the time of discharge be changed to honorable.  The Applicant requests a documentary record review.  The Applicant did not list any representative on the DD Form 293.

Decision

A documentary review was conducted in Washington, D.C. on 20040526.  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/Convicted by special court martial, authority: NAVMILPERSMAN, Article 3640420.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

1.  “I was in the military for approximately 2 ½ yrs & was a model sailer.  I was having marital problems & went outside of my marriage to look for comfort. This was a 1-time incident.  The person I sought out offered to me to use cocaine during our encounter.  This was the only time I used drugs during my period of service.  Just so happened a drug test was taken the next day which I did not pass.  I was too afraid & embarrassed to confide in my senior chief concerning marital problems, etc, which ultimately led to my court martial.  I feel my 2 ½ yrs service prior to this incident should warrant an upgrade in my military discharge.”

Documentation

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

Handwritten Letter

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	None
	Active:   USN			None

Period of Service Under Review:

Date of Enlistment:  851230		Date of Discharge:  891117

Length of Service (years, months, days):

	Active:    03  08  05
	Inactive:  00  01  03

Age at Entry:  21			Years Contracted:  8

Education Level:  12			AFQT:  47

Highest Rate:  SN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.33 (3)	Behavior:  3.40 (3)		OTA:  3.46

Military Decorations:  None

Unit/Campaign/Service Awards:  None

Days of Unauthorized Absence:  1

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:

860203:	Ordered to active duty for 36 months under the Active Mariner program.

880819:	Retention Warning:  Advised of deficiency (CO’s NJP of 880819 for violation of UCMJ, Article 86, Unauthorized absence), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 

880819:	NJP for violation of UCMJ, Article 86: UA from 0730, 880705 to 0730, 880706 (1day/S).
	Award:  Restriction to NAVSTA NORVA for 30 days, and extra duty for 30 days.  No indication of appeal in the record.

881213:	Special Court Martial [trial dates 881212 – 881213]
	Charge I:  violation of the UCMJ, Article 86, failure to go to appointed place of duty, to wit: Restricted Personnel Muster at 0630, 880826, 1200, 880827; 1200, 0630, 880829, 0630, 880830; 0615, 880829, 1800, 880903; 2130, 880903; 1615, 880906; 1200, 880915, 1615, 880915; 1800, 880916 and 0630, 881208.  Charge II: violation of UCMJ, Article 91: Disrespect in language to a Petty Officer on 880922 and Disrespect in deportment toward a Chief Petty Officer on 881115.  Charge III:  violation of the UCMJ, Article 112a: Wrongful use of cocaine on or about 880806 to 880816. 
	Findings:  to Charge I, 2, and 3 and specifications 2 thereunder, guilty.
	Sentence:  Confinement for 90 days, and a Bad Conduct discharge.
	CA 890215:  Sentence approved and ordered executed except for bad conduct discharge.
	
881213:	Joined the Naval Brig, Naval Station, Norfolk, Virginia, for confinement.

890224:	From confinement; to appellate leave.

890301:	Waived rights to clemency review.

890720:	NMCCMR:  The findings of guilty and sentence, as approved on review, are affirmed.

891117:	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 19891117 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).  

Issue 1.   The Applicant contends that his problems in the Navy can be attributed to his "marital problems".  While he may feel that his marital problems were the underlying cause of his misconduct, the record clearly reflects his willful misconduct and demonstrated he was unfit for further service.  The evidence of record did not show that the Applicant was either not responsible for his conduct or that he should not be held accountable for his actions.  Relief on this basis is denied.

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 evidence of record did not contain sufficient mitigating or extenuating factors to offset the seriousness of the offenses for which the discharge was awarded.  In addition, the reason for discharge, convicted by special court-martial, is most appropriate.  Relief denied.

The Applicant remains eligible for a personal appearance hearing, provided an application is received, at the NDRB, within 15 years from the date of discharge.  The Applicant can provide documentation to support any claims of post-service accomplishments or any other evidence related to his discharge 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 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.

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.  

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