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

   ex-MMFR, USN
Docket No. ND05-00175

Applicant’s Request

The application for discharge review was received on 20041020.  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.

Decision

A documentary review was conducted in Washington, D.C. on 20050214.  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.  “To the Board.  I know I do not deserve an upgrade.  I was clearly guilty of a positive U/A test.  My requesting an upgrade is what any fighting war veteran or long term career goal commitments veteran sought to have!  A retirement, a good secured job, opportunity to use the G. I. Bill and free medical care.  A future?  I today have no excuse of why I ever used drugs.  But for 13-years of it, it has been a living nightmare that no horror movie could ever out rate.  Through the use of crack cocaine.  I have lost many things more precious to me even my career in the military.  Liked I loved my family, my x-wife, I sincerely loved what I represented in the military.  However, foolishness have costed me and the addiction took me.  Knowledge of AA & NA was not vital are easy to obtain back in 1980-1990 as it is today.  And about time I found out what addiction meant.  It was to late.  I’ve lost what I deerly fought for my freedom to be the citizen that I desire to be.  Therefore my request for upgrade is to have a life that life now that I vision, can see and defintly can obtain.  I desire strongly to retire as a veteran, now that I am clean and sober.  I have self-suffered long enough.  And I sincerly request that you the Board carefully consider this, because what I self-suffered.  Is even more that what you the arm forces could ever do to me.  Today are even in the future.  If you could never give me a honorable but only a general?  I could accept that and live.  Today I am getting older and Ive filed for disability.  Yet!  Nothing will be a expected end in my life.  But live as I visional it.  Freedom to become…

As to continuation:  with format stated “positions to restricted Veterans”.  I filled out a job for custodian, was rated #1 for being hired.  Was hired but quickly drop.  Due to discharge.  Veteran’s hospital at Dallas still will hire me under the conditions that hopefully, you see fit to honor my discharge.  I’ve requested.  Thank-you.

Also!  Along with attempting to place my foot in the door at veterans Hospital.  Ive also completed and finish a technical trade course at PCI-Health Training for Medical Assistant.  I am certified + my grade point average was 300.  I strongly seek to apply this 9-month trade school course also at Veterans Hospital.  My ultimate goal is to peruse Physician Assistant.  There also, I would strongly desire to work + retire at the Dallas Veteran’s Hospital.  Please!  Consider my life.  Please!”

Documentation

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

Applicant’s DD Form 214
Character Reference Letter dated 08 Aug 2004
Copy of Program for Mission Baptist Church Service, dated 29 Aug 2004
Character Reference Letter, dated 29 Aug 2004
Excerpt from Delegated Examining Operations Handbook (3 pages)
Certificate of Achievement, Maintaining 30 Days of Sobriety, dated 12 Dec 2004
Applicant’s resume
Character Reference Letter ,dated 30 Aug 2004
PCI Health Training Center Student Progress Report (7 pages)

PART II - SUMMARY OF SERVICE

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

	Inactive: 	USNR		800221 - 800610	Rep to ADU
	Active:		USNR 		800611 - 840517	HON
			USN		840518 - 900318	HON

Period of Service Under Review:

Date of Enlistment:  900319		Date of Discharge:  941005

Length of Service (years, months, days):

	Active:    04  06  18
	Inactive:  00  03  20

Age at Entry:  28			Years Contracted:  6

Education Level:  13			AFQT:  31

Highest Rate:  MM2

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.65 (4)		Behavior:  3.45 (4)		OTA:  3.75

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM, SASM, NER (2), GCM (2), SSDR

Days of Unauthorized Absence:  19

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:

920205:	NJP for violation of UCMJ, Article 86:  Unauthorized absence from on or about 920116 to 920117 and 920128 to 920130 (3 days/S).
	Award:  Forfeiture of $608.00 pay per month for 1 month, restriction and extra duty for 30 days, reduction to E-4 (reduction and forfeitures suspended 6 months).  No indication of appeal in the record.

920708:	NJP for violation of UCMJ, Article 92:  Wrongfully violate a lawful general regulation on 920526 and failure to obey a lawful order from LNC on 920626.
Award:  Forfeiture of $608.00 pay per month for 1 month, extra duty for 15 days, reduction to E-4 (reduction suspended 6 months).  No indication of appeal in the record.

920917:	NJP of 920708 disallowed this date.  Member found not guilty of disobeying a general regulation because regulation is non-punitive in nature  Rehearing ordered by the ISIC.

921006:	NJP for violation of UCMJ, Article 92:  Failure to obey a lawful order on 920626, violation of UCMJ Article 134:  Orally communicate certain indecent language on 920526.
Award:  Forfeiture of $608.00 pay per month for 1 month, reduction to E-4 (reduction suspended 6 months).  No indication of appeal in the record.

921006:	Punishment of reduction in rank to MM3 suspended at CO’s NJP of 921006 vacated this date due to continued misconduct.

921006:	NJP for violation of UCMJ, Article 86:  Unauthorized absence from on or about 921002 to 921004 (2 days/S).
Award:  Forfeiture of $521.00 pay per month for 2 months, restriction and extra duty for 20 days, reduction to E-3.  No indication of appeal in the record.

921119:	Applicant commenced a period of unauthorized absence this date.

921123:	Applicant surrendered from unauthorized absence this date (4 days/S).

930110:	Applicant commenced a period of unauthorized absence this date.  

930113:	Applicant surrendered from unauthorized absence this date (3 days/S).

930129:	Applicant commenced a period of unauthorized absence this date.

930203:	Applicant surrendered from unauthorized absence this date (6 days/S).

930327:	Applicant commenced a period of unauthorized absence this date.  

930330:	Applicant surrendered from unauthorized absence this date (3 days/S).

930401:	Applicant commenced a period of unauthorized absence this date.

930404:	Applicant surrendered from unauthorized absence this date (3 days/S).

930414:	Special Court Martial:
	Charge I:  violation of the UCMJ, Article 86.
	Specification 1:  Unauthorized absence 930110 - 930113, [3 days/S].
	Specification 2:  Unauthorized absence 930128 - 930203, [6 days/S].
	Charge II:  violation of the UCMJ, Article 112a.
	Specification 1:  Wrongful use of a controlled substance on 921121.
	Specification 2:  Wrongful use of a controlled substance on 921121.
	Specification 3:  Wrongful use of a controlled substance on 930114.
	Additional Charge I:  violation of UCMJ, Article 112a.
	Specification:  Wrongful use of a controlled substance on 930204.
	Additional Charge II:  violation of UCMJ Article 86.
	Specification 1:  Unauthorized absence 930327 - 930330, [3 days/S].
	Specification 2:  Unauthorized absence 930401 - 930414, [3 days/S].
	Additional Charge III:  violation of UCMJ Article 134.
	Specification:  Break restriction on 930401.
	Findings:  to Charge I and both specifications thereunder, guilty, to Charge II and specifications 1* and 2 thereunder, guilty, to additional Charge I and the sole specification thereunder, guilty, to additional Charge II and both specifications thereunder, guilty, to additional Charge III and the sole specification thereunder, not guilty.
	Sentence:  confinement for 30 days, and a Bad Conduct discharge.
	CA 930513:  Sentence approved and ordered executed, except for bad conduct discharge.
	SA:  see SSPCMO.

930915:	NMCCMR:  The findings of guilty and sentence, as approved on review, are affirmed.

940131:	COMA:  Petition for grant of review is granted on Issue I raised by the appellate defense counsel.

940628:	COMA:  On consideration of the granted issue, in light of United States v. Mitchell, 39 MJ 131 (CMA 1994), and United States v. Lewis, 39 MJ 280 (sep. op.)(CMA 1994), the decision of the NMCCMR is affirmed.

940926:	Appellate review is considered complete.

941005:	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 19941005 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:  In response to the Applicant’s issue, relevant and material facts 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, 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 was convicted by special –court martial, in accordance with his pleas, for violations of UCMJ Article 86, unauthorized absence on four separate occasions, and Article 112a wrongful use of a controlled substance, on three separate occasions.  After a thorough review of the Applicant’s record, including a prior nonjudical punishment proceeding** for two violations of the UCMJ, Article 86, 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.  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.  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, however, 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 additional documentation that should be provided to the Board include 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 Veterans Administration determines eligibility for post-service benefits not the Naval 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.  

Since the NDRB has no jurisdiction over reenlistment, reentry, or reinstatement into the Navy, Marine Corps, or any other of the Armed Forces, NDRB is not authorized to change a reenlistment code.  An unfavorable “RE” code is, in itself, not a bar to reenlistment.  A request for a waiver can be submitted during the processing of a formal application for reenlistment through a recruiter.  Only the Board for Correction of Naval Records (BCNR) can make changes to reenlistment codes.

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 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 112, 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