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

ex-YNSR, USN 
Docket No. ND04-00244

Applicant’s Request

The application for discharge review was received on 20031120.  The Applicant requests the characterization of service received at the time of discharge be changed to general/under honorable conditions.  The Applicant requests a documentary record discharge review.  The Applicant did not list any representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20040728.  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:

I J_ H_ was given an other than honorable discharge due to my drug use, since then I’ve been admitted into a Christian recovery _ at 426 S McDuff Ave in Jax FL in which I spent one year there, I don’t make excuses about my discharge only that I regret the way in which I harmed people around me and served with me. After nine years of being discharged my life is drug free and on these basis of changing my life with God’s help I am a totally different person than I was back in 1994.  Thank you for taking this time to hear me.

Documentation

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

None

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	870330 - 870517	COG
	Active:   USN 			870518 - 910110	HON

Period of Service Under Review:

Date of Enlistment:  910111		Date of Discharge:  950406

Length of Service (years, months, days):

	Active:    04  04  25
	Inactive:  None

Age at Entry:  25			Years Contracted:  4 

Education Level:  12			AFQT:  34

Highest Rate:  YN3

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  2.85 (8)	Behavior:  2.80 (8)		OTA:  3.27

Military Decorations:  None

Unit/Campaign/Service Awards:  BATTLE”E”, SSDR (2), CGSOSR, NDSM, LOC 

Days of Unauthorized Absence:  None

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:

910111:	Reenlisted onboard USS CUSHING (DD-985) for 4 years.

910211:	NJP for violation of UCMJ, Article 86: On or about 910122, absent himself from his unit.
	Award:  Forfeiture of $50.00 pay per month for 2 months, restriction and extra duty for 45 days.  No indication of appeal in the record.

911031:	Retention Warning:  Advised of deficiency (CO’s NJP of 911021 violation of the UCMJ, Article 128; CO’s NJP if 910211 violation of UCMJ, Article 86), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 

930617:	NJP for violation of UCMJ, Article 112a: Wrongfully use of a controlled substance to wit: cocaine on or about 930622.
	Award:  Forfeiture of $200.00 pay per month for 2 months, restriction to NAS MIRAMAR for 60 days, reduction to E-3.  No indication of appeal in the record.

940321:	Special Court Martial 
	Charge I:  violation of the UCMJ, Article 112a: Wrongful use of cocaine on or about 930622. 
	Findings:  to Charge I and specification thereunder, guilty.
	Sentence:  Confinement for 30 days, forfeiture of $500.00 pay per month for 2 months, reduction to E-1, Bad Conduct discharge.
	CA 940705:  Sentence approved and ordered executed, except for bad conduct discharge.

940321:	Joined Naval Consolidated Brig Miramar, San Diego, California for confinement.

940509:	From confinement; to appellate leave.

950106:	NMCCMR:  The findings of guilty and sentence, as approved on review, are affirmed.  

950406:	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 19950406 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).  

In response to the Applicant's issue, relevant and material details stated in a court-martial specification are presumed by the NDRB to be established facts.  With respect to a discharge adjudged by a court-martial case tried under the Uniform Code of Military Justice, the action of the NDRB is restricted to upgrades based upon clemency only (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 denied.

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, a positive employment record, a drug free lifestyle, and certification of community service and non-involvement with civil authorities are examples of verifiable proof that can be submitted.   At this time, the Board determined that the documentation submitted by the Applicant does not mitigate his misconduct while on active duty.  

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.  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 112a, (wrongful use of a controlled substance).

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 Rm309
		Washington Navy Yard DC  20374-5023