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

ex-FR, USN 
Docket No. ND04-00672

Applicant’s Request

The application for discharge review was received on 20040318.  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.  In the acknowledge letter, the Applicant was informed that he was approaching the 15 year point for review by this Board and was encouraged to attend a personal appearance hearing in the Washington DC, area.  Applicant did not respond. 

Decision

A documentary review was conducted in Washington, D.C. on 20041008.  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.  “Members of the Board

I came today 3-11-04 ask the Board to up grade my Dis-charge, I was a career man until, I was court martial in 1988 due to check written to the BX at Mayport Naval Station, due to the fact that now my ex-wife and I was having problem she left me, and at this time we had a joint account at the Navy Federal Credit Union, she had drawing all the money from the account and I had written 900.00 worth of worthless check and had no idea that there was no money in the account when I find out I tried to correct the problem.  She was on crack cocain, and we had a small child, then and I was young. If, I could just go back the last 17 yrs and know what I know today I would have save my career and my family the military was my life, every since I was Dis-charge my life has been on a down hill swing, my daughter is over in Iraq now and I should be there.  This is all the information I have, but it true, and I pray this is enough to change my Dis-charge to honorable, because I need my benefit from the VA my 1st tour of duty I have a honorable discharge from the Army, I get hurt in the Navy were I lost all sight in my left eye and now glaucoma in my right eye from injuries.  Thank you for you time it is greatly appreciated.”

Documentation

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

Letter from Applicant, dated 29 Apr 2004

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	791221 - 800710	COG
860529 - 860902	COG
	Active:   USAR		800711 - 830629	HON

Period of Service Under Review:

Date of Enlistment:  860903		Date of Discharge:  891120

Length of Service (years, months, days):

	Active:    06  02  06
	Inactive:  None

Age at Entry:  24			Years Contracted:  4 

Education Level:  12			AFQT:  37

Highest Rate:  HT3 (Frocked)

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.60 (2)	Behavior:  3.50 (2)		OTA:  3.50

Military Decorations:  Expert Badge with M-16 Rifle Bar, Expert Badge with Hand Grenade Bar, Expert Infantrymen Badge

Unit/Campaign/Service Awards:  Army Service Ribbon, OSR, Army GCM, HSM

Days of Unauthorized Absence:  None

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:

880303:	NAVDRUGLAB Jacksonville, FL, reported Applicant’s urine sample, received 880222, tested positive for cocaine.

880426:	NJP for violation of UCMJ, Article 86: UA from his organization, to wit: Naval Station, Mayport, Florida, violation of UCMJ Article 112a: Wrongful use of a controlled substance, to wit: cocaine.
	Award:  Forfeiture of $367.00 pay per month for 2 months, restriction and extra duty for 30 days, reduction to E-2.  No indication of appeal in the record.

880610:	NAVDRUGLAB [Jacksonville, FL], reported Applicant’s urine sample, received 880524, tested positive for [cocaine].

880711:	CAAC screening evaluation indicates Applicant does not appear to be psychologically dependent on drugs, recommended for administrative discharge via a VA medical center for treatment, to be place on a command monitored urinalysis surveillance program, referred to family service center.

880721:	Positive urinalysis during surveillance testing [Extracted from medical record].

880726:	NJP for violation of UCMJ, Article 86: UA from his organization, to wit: Naval Station, Mayport, Florida from 0745, 880719 to 0730, 880720, violation of UCMJ Article 86: UA from his organization, to wit: Naval Station, Mayport, Florida from 0700, 880722 to 0842, 880722.
	Award:  Restriction for 45 days, reduction to E-1.  No indication of appeal in the record.

880811:	UA from unit 2200, 880811.

880812:	Positive urinalysis during surveillance testing [Extracted from medical record].

880812:	Returned to military control at 0220, 880812.

880816:	Positive urinalysis during surveillance testing [Extracted from medical record].

880921:	Special Court Martial 
	Charge I:  violation of the UCMJ, Article 112a: Wrongful use of cocaine (date unknown); Charge II: violation of the UCMJ, Article 123a (10 Specifications), Making, drawing, or uttering check, draft, or orders without sufficient funds.  Charge III: violation of the UCMJ, Article 134: Breaking restriction on 880811. 
	Findings:  to Charge I and specification thereunder guilty, to Charge II and specifications 1 through 10 thereunder, guilty.  To Charge III and the specification thereunder, guilty
	Sentence:  Confinement for 2 months, forfeiture of $400.00 pay per month for 2 months, Bad Conduct discharge.
	CA 881122:  Sentence approved and, except for that portion of the sentence extending to the bad conduct discharge, will be executed, but the execution of that portion of the sentence adjudging confinement in excess of thirty days and all forfeitures of pay, is hereby suspended for period of 6 months from the date of trial, at which time, unless the suspension is sooner vacated, the suspended portions of the sentence will be remitted without further action.

880921:	Joined the Navy Brig, NAS, Jacksonville, Florida, for confinement.

881004:	DAAR indicates cocaine abuse as a result of a unit sweep urinalysis, found not dependent, recommended for separation not via VA hospital.

881016:	To Appellate Leave [Extracted from DD Form 214].

890405:	NMCCMR:  The findings of guilty and sentence, as approved on review, are affirmed.

890822:	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 19891120 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:  Relevant and material facts stated in a court-martial specification, in which the Applicant was found guilty, are presumed by the NDRB to be established facts.  With respect to a discharge adjudged by a court-martial case, the action of the NDRB is restricted to upgrades based on clemency.  Clemency is an act of leniency that reduces the severity of the punishment imposed.  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.  Specifically, the NDRB found that the Applicant’s service was marred by nonjudical punishment and special court-martial convictions for violations of Articles 86, 112a, and 123a of the UCMJ.  The Applicant’s conduct, which forms the primary basis for determining the character of his service, reflects his willful failure to meet the requirements of his contract with the U.S. Navy and falls far short of that required for an upgrade of his characterization of service.  Relief denied.

The Veterans Administration determines eligibility for post-service benefits not the Navy Discharge Review Board.  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.  Additionally, the Board has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities.  Regulations limit the Board’s review to a determination on the propriety and equity of the discharge.  

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.  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, wrongful use, possession, etc of a controlled substance and Article 123a, making, drawing, or uttering check, draft, or order without sufficient funds.

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	 

.