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

 
ex-TMSR, USN
Docket No. ND04-00646

Applicant’s Request

The application for discharge review was received on 20040310.  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 listed the Veterans of Foreign Wars as the representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20041001.  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.  My undesirable discharge was inequitable because on one isolated incident in 7 yrs of service with no other adverse action.”

Additional issues submitted by Applicant’s representative (VFW): 

“Applicant indicated above requested that Veterans of Foreign Wars act as counsel concerning his application.  His records were reviewed on 09-09-04 and the following comments are herby submitted.

We support the applicant’s contentions that his discharge be upgraded.

We refer this case to the Board for their careful and compassionate consideration and request the applicant’s discharge be reviewed for an upgraded discharge.”

Documentation

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

Copy of DD Form 214 (Service 2)
Copy of DD Form 214 (Service 2)
Copy of Applicant Letter (3 pages) not dtd
Letter from G_ R_ J_, (2 pages), dtd Dec 8, 2003
Copy of letter from J_ P_ R_, dtd 20 Jun 95
Copy of National Archives and Records Administration form 13046, dtd 6-16-95
Letter from D_ T_ R_, not dtd
Copy of pages from 2003 Edition of Federal Benefits for Veterans and Dependants (2 
	Pages)
Copy of letter from W_G_C_, VFW NSO, September 15, 2004

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	None
	Active:   USN			810731 - 860729	HON

Period of Service Under Review:

Date of Enlistment:  860730		Date of Discharge:  900312

Length of Service (years, months, days):

	Active:    08  07  09
	Inactive:  None

Age at Entry:  24			Years Contracted:  4 

Education Level:  11	/GED		AFQT:  70

Highest Rate:  TM1

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.91 (7)	Behavior:  3.74 (7)		OTA:  3.78

Military Decorations:  None

Unit/Campaign/Service Awards:  SSDR*, MUC, GCM, NER**, MARKSMANSHIP RIBBON 

Days of Unauthorized Absence:  None

* SSDR with 3 stars
** NER with 1 star

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:

860730:	Reenlisted for 4 years.

890202:	Special Court Martial 890202.
	Charge I:  violation of the UCMJ, Article 112a (1) Specifications.
	Specification 1:  Wrongful use of cocaine.
	Findings:  to Charge I and specifications1, guilty.
	Sentence:  Confinement 30 days, forfeiture of $466.00 per month for (1) month, reduction to E-1, Bad Conduct discharge.
	CA 990328: Sentence approved and ordered executed, except for bad conduct discharge.
	
890202:	Joined the NAS Jacksonville Brig, for confinement.

890216:	From confinement; to appellate leave.

890922:	NMCCMR:  The findings of guilty and sentence, as approved on review, are affirmed.

900212:	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 19900312 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’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 additional documentation to support any claims of post-service accomplishments 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	 

.