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

ex-DPSR (SW/AW), USN  
Docket No. ND04-01078

Applicant’s Request

The application for discharge review was received on 20040622.  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 review.  The Applicant did not list any representative on the DD Form 293.  Subsequent to the application, the Applicant obtained representation by the Veterans of Foreign Wars.

Decision

A documentary review was conducted in Washington, D.C. on 20050322.  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.  “Severity of discharge is too severe for this charge with over 9 years honorable service, paygrade of E-6, two warfare qualifications and numerous medals, awards & commendations.

While putting together this package for your review, it brought out a great feeling of pride that I was able to share with my family.  I have not been able to do that because of the shame and disappointment I have felt since my discharge.  I have been successful in life since the military, and would be very grateful for any upgrade that this Board could approve.  Thank you for your consideration.”

Issues submitted by Applicant’s counsel/representative (Veterans of Foreign Wars):

2.  “Propriety and Equity Issue(s): The applicant was administratively separated from the Navy after being found guilty by Special Court Martial of multiple specifications of violation of UCMJ Article 112(a) relating to methamphetamine.  The applicant was not offered rehabilitation as was warranted by DOD and Navy Regulations.

Statement:  In accordance with 32 CFR § 724, and SECNAVINST 5420.174D. The Veterans of Foreign Wars submits to the Naval Discharge Review Board (NDRB) the above issue and following statement in supplement to the Applicant’s petition.

The applicant requests that his Bad Conduct Discharge be upgraded to Honorable.  The applicant served more than 8 years in the Navy with an unblemished record prior to his involvement with methamphetamine.  The VFW believes that the Navy and the Sailor would have been better served if he had been placed in a treatment program for his addiction rather than court-martialed and discharged.

The Veterans of Foreign Wars’ express purpose in providing this statement and any other submittals or evidence filed is to assist this applicant in the clarification and resolution of the impropriety or inequity raised.  To that end, we rest assured that the NDRB’s final decision will reflect sound equitable principles consistent in law, regulation, policy and discretion as promulgated by title 10 USC § 1553, and set forth in 32 CFR § 724 and SECNAVINST 5420.174D.

This case is now respectfully submitted for deliberation and disposition.”

Documentation

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

Applicant’s DD Form 214
Letter of Commendation, Commanding Officer, USS ABRAHAM LINCOLN (CVN 72)
Designation as Enlisted Surface Warfare Specialist, dated 29 Aug 1993
Designation as Enlisted Aviation Warfare Specialist, dated 20 Nov 1991
Photograph of Applicant
Enlisted Performance Record (3 pages)
Enlisted Performance Evaluation Report, from 15 Jan 1988 to 26 Feb 1988 (2 pages)
Enlisted Performance Evaluation Report, from 01 Feb 1989 to 31 Jul 1989 (2 pages)
Enlisted Performance Evaluation Report, from 27 Feb 1988 to 31 Jan 1989 (2 pages)
Enlisted Performance Evaluation Report, from 01 Aug 1989 to 15 Jan 1990 (2 pages)
Enlisted Performance Evaluation Report, from 16 Jan 1990 to 30 Jun 1990 (2 pages)
Enlisted Performance Evaluation Report, from 01 Jul 1990 to 15 Jan 1991 (2 pages)
Enlisted Performance Evaluation Report, from 16 Jan 1991 to 13 Mar 1991 (2 pages)
Enlisted Performance Evaluation Report, from 14 Mar 1991 to 31 Mar 1992 (2 pages)
Enlisted Performance Evaluation Report, from 01 Apr 1992 to 31 Mar 1993 (2 pages)
Enlisted Performance Evaluation Report, from 01 Apr 1993 to 31 Mar 1994 (2 pages)
Announcement of Award, Joint Service Achievement Medal, dated 11 Apr 1996 (3 pages)
Letter of Commendation, Commanding Officer, USS ABRAHAM LINCOLN (CVN 72)
Good Conduct Award (Second) for Service Completed on 08 Nov 1995
Navy Achievement Medal, dated 26 Sep 1994 (2 pages)
Letter of Commendation, Commanding Officer, Pacific Operations Support Facility
Flag Letter of Commendation, Commander, United States Naval Forces, Central Command
Letter of Appreciation, dated 23 Jan 1992
Citation for Outstanding Achievement in the Health and Physical Readiness Program, dated 17 May 1993
Certificate of Honorable Discharge, dated 19 Jan 1994
Certificate of Gratitude, City of Woodson Terrace
Copy of CPR Certification, American Heart Association, dated 14 Jul 2004

PART II - SUMMARY OF SERVICE

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

	Inactive: None
Active:   USNR 		870213 - 910203	HON
               USN 		910204 - 940119	HON

Period of Service Under Review:

Date of Enlistment:  940120		Date of Discharge:  980616

Length of Service (years, months, days):

	Active:    04  04  27  (Does not exclude lost time)
	Inactive:  None

Age at Entry:  24			Years Contracted:  3 (7 months extension)

Education Level:  12			AFQT:  80

Highest Rate:  DP1

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  4.0 (3), 4.00 (1)	Behavior:  4.0 (3), 5.00 (1)	OTA:  4.0, 3.57

Military Decorations:  NAM, JSAM, ESWS, EAWS

Unit/Campaign/Service Awards:  NDSM, SASM w/Bronze Star, SSDR (2), AFEM, NER, Flag Letter of Commendation

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:

970114:	Special Court Martial:
	Charge:  Violation of the UCMJ, Article 112a.
	Specification:  Wrongful use of methamphetamine on 960927
	Findings:  To the Charge and specification thereunder, guilty.
	Sentence:  Reduction in rank to E-1 and to be reprimanded.
	CA 970320:  Sentence approved and ordered executed.

970320:	Punitive letter of reprimand issued in accordance with special court martial sentence of 970114.

970415:	Special Court Martial:
	Charge:  Violation of the UCMJ, Article 112a.
	Specification:  Wrongful use of methamphetamine on 970211
	Findings:  To the Charge and specification thereunder, guilty.
	Sentence:  Confinement for 30 days, Bad Conduct discharge.
	CA 970529:  Sentence approved and ordered executed, except for bad conduct discharge.
	SA:  see SSPCMO.

970415:	To Naval Consolidated Brig, Pearl Harbor, Hawaii, for confinement.

970508:	From confinement.

970526:	To appellate leave

971120:	NMCCCA:  The findings of guilty and sentence, as approved on review, are affirmed.

980319:	Applicant petitioned USCAAF for grant of review of the decision of NMCCA.

980605:	USCAAF:  Petition for grant of review denied.

980610:	Appellate review complete, final court-martial order should be promulgated.

980616:	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 19980616 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:  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 contends that the severity of his discharge was disproportionate to the severity of his offense.  The evidence of record reveals that the Applicant was convicted twice at two separate courts-martial within 4 months of each other, for violations of the UCMJ, Article 112a, wrongful use of a controlled substance, methamphetamines.  The Applicant’s conduct, which forms the primary basis for determining the character of his service, reflects his willful and repeated failure to meet the requirements of his contract with the U.S. Navy.  Such conduct falls far short of that expected of a member of the U.S. military.  After a thorough review of the Applicant’s record, issues submitted, and post service accomplishments, the Board determined that clemency was not warranted and that the sentence awarded the Applicant at his court-martial was appropriate for the offenses he committed.  Relief denied.

Issue 2:  The Applicant contends, through counsel, that clemency is warranted because he did not receive substance abuse rehabilitation treatment.  The government enjoys a presumption of regularity in the conduct of its affairs.  The Applicant bears the burden of overcoming this presumption through the presentation of substantial and credible evidence to support his issue.  There is no evidence in the record, nor has the Applicant produced any evidence, to show that he was substance dependent and entitled under regulation to receive appropriate treatment.  The Applicant’s contention is without merit.  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 Naval service.  The NDRB is authorized to consider post-service factors in the recharacterization of a discharge to the extent such matters provide a basis for a more thorough understanding of the Applicant’s performance and conduct during the period of service under review.  Examples of documentation that should be provided to the Board include proof of educational pursuits, verifiable employment records, documentation of community service, credible evidence of a substance free lifestyle and certification of non-involvement with civil authorities.  As of this time, the Applicant has not provided sufficient documentation for the Board to consider.  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 any additional 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 14, effective 
03 Oct 96 until 14 Dec 98, 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 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part II, 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 “http://Boards.law.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:

		Secretary of the Navy Council of Review Boards
		Attn:  Naval Discharge Review Board
		720 Kennon Street SE Rm 309
		Washington Navy Yard DC  20374-5023