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

 ex-AR, USNR
Docket No. ND05-00248

Applicant’s Request

The application for discharge review was received on 20041129.  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 Disabled American Veterans as the representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20050428.  After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, the Board determined that clemency was not warranted and that the characterization of discharge was appropriate.  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. ”When I was serving the US Navy during the period of 1992-94 I was young at the age of 21 years old and made the wrong decisions by using drugs to get out of the military.  I rebelled against my supervisors because at the time I did not get along with my Master Chief who later got charged with sexual harassment.  I regret the irresponsible use of drugs and I was very scared to release information about the drug dealers was afraid for my life and my daughters.  I took the blame of distributing to other co friends in the Navy for using.  Others had their connections but I kept my mouth shut.  I served in the brig for more than I was supposed to.  10 yrs later I look back & realize how this affected my background for future employment.  I’m about to apply for the San Diego Police Academy while in pursuit of a Master’s Degree in Criminal Investigation to protect & serve.  I have since been clean after my time in the Navy.  I beg the board to change my discharge from Bad conduct to honorable or a general for employment purposes.  Thank you.”

Additional issues submitted by Applicant’s counsel (Disabled American Veterans):

2:  "After a review of the Former Service Members (FSM) DD Form 293 Application for the Review of Discharge or Dismissal from the Armed Forces of the United States and all of the evidence assembled for review, we continue to note the contention of the appellant in her request for a discharge upgrade of her current discharge of Bad conduct to that of Honorable.

The FSM served on active service from January 6, 1992 to March 11, 1994 at which time she was discharged for court martial convictions..

The FSM requests consideration be given to equitable relief, as this is a matter that involves a determination whether a discharge should be changed under the equity standards, to include any issue upon which the applicant submits to the Board’s discretionary authority, under SECNAVIST 5420.174D.

Under the premises of equitable relief, claimant requests consideration as her actions were caused by immaturity and inability to deal with multiple stressful situations as described in her submittal.

We ask for the Board’s careful and sympathetic consideration of all the evidence of record used in rendering a fair and impartial decision.   These issues do not supersede any issues previously submitted by the applicant."

Documentation

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

Applicant’s DD Form 214
Letter from Applicant dated November 18, 2004 (2 pages) 
Letter of Recommendation from L_ B_ dated November 1, 2004
Letter of Recommendation from K_ R. L_ dated January 25, 2005
San Diego County Office of Education Transcript of Attendance dated
    November 3, 2004
Testing Appointment Letter from Southwestern College Police Academy
    undated
ADP Screening and Selection Services Criminal Court Record Request dated September
    17, 2002 (2 pages)
Scripps I.D. Card
VA Form 21-22 Appointment of Veteran Service Organization as Claimant's
    Representative
VA Form 10-5345 Request for and Authorization to Release Medical Records or
    Health Information

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	None
	Active:   USN 			None

Period of Service Under Review:

Date of Enlistment:  911231		Date of Discharge:  940311

Length of Service (years, months, days):

	Active:    02  00  08  (excludes confinement but does not exclude appellate
                                              leave time)
	Inactive:  00  00  06

Age at Entry:  20			Years Contracted:  8

Education Level:  12			AFQT:  46

Highest Rate:  AA

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  NMA*		Behavior:  NMA		OTA:  NMA

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM

Days of Unauthorized Absence:  None

*No Marks available for review

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:

920106:	Commenced 2 years of active duty under the Aviation Apprenticeship program.
 
921103:	Applicant to unauthorized absence status at 2300 hours this date.

921104:	Applicant from unauthorized absence status at 0700 hours this date. 

921112:	NJP for violation of UCMJ, Article 86: Unauthorized absence from unit on or about 2300, 921103 until on or about 0700, 921104 (8 hours).
	Award:  Forfeiture of $392.00 pay per month for 1 month (suspended for 6 months), restriction to NAS MIRAMAR for 30 days, reduction to next inferior pay grade (suspended for 6 months).  No indication of appeal in the record.

921210:	To pre-trial confinement at Naval Consolidated Brig, Miramar, CA.

921224:	Suspended reduction in rate and forfeiture of $392.00 pay per month for 1 month awarded at Commanding Officer, VAW-110 MIRAMAR, CA, NJP conducted on 921112 is hereby vacated due to continued misconduct.

930107:	Drug and Alcohol Abuse Report (DAAR) indicates amphetamine abuse as a result of a unit sweep urinalysis on 921121, dependency not determined, recommended for separation via VA hospital.   

930208:	Special Court Martial
	Charge I:  violation of the UCMJ, Article 112a, (6 Specifications),
	Specification 1:  Did, on or about 921121, wrongfully use methamphetamine; Specification 2: Did, on or about 921125, wrongfully use methamphetamine; Specification 3: Did, on or about 921202, wrongfully use methamphetamine; Specification 4: Did, on or about 921209, wrongfully use methamphetamine; Specification 5: Did, on or about 9211, wrongfully distribute some amount of methamphetamine.  Specification 6: Did, on or about 9212, wrongfully distribute some amount of methamphetamine.  Charge II: violation of the UCMJ, Article 134: (5 Specifications), Specification 1: Did, on or about 921118, break restriction; Specification 2: Did, on or about 921120, break restriction Specification 3: Did, on or about 921121, break restriction; Specification 4: Did, on or about 921125, break restriction; Specification 5: Did, on or about 921202, break restriction.
	Findings:  to Charge I and specifications 1, 2 and 3 thereunder, guilty. To specification 4, 5, and 6 thereunder, not guilty.  To Charge II and specifications 1 through 5 thereunder, guilty.  
	Sentence:  Confinement for 3 months, forfeiture of $500.00 pay per month for 3 months, bad conduct discharge.
	CA 930413:  Because confinement was served in excess of what was bargained for, only so much of the sentence is approved as provides for a bad conduct discharge, confinement for three months, and forfeiture of $300.00 pay per month for three months.  In accordance with the pretrial agreement, on 930208 confinement deferred and by this action, that deferment is rescinded.  Except for that part of the sentence extending to a bad conduct discharge and 18 days of unserved confinement, the sentence will be executed.  The 18 days of remaining confinement is suspended for 12 months at which time, unless sooner vacated, shall be remitted without further action.
   
930208:	Released from pre-trial confinement and restored to full duty.

930218:	Waiver of clemency review [Extracted from NC&PB database].

930218:	Substance Abuse/Dependency Screening conducted at Naval Station
Branch Clinic, San Diego, CA.  Applicant determined to be substance
dependent and advised to obtain Level III (6 week inpatient) treatment
through the VA following discharge.

930218:	Applicant placed on voluntary appellate leave.

931105:	NMCCMR:  The findings of guilty and sentence, as approved on review, are affirmed.

940311:	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 19940311 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).  

Issues 1 and 2:  In response to the Applicant’s issues regarding the adjudged discharge at her special court-martial, the Applicant must understand that the actions of the NDRB in such cases are restricted to upgrades based on clemency.  Clemency is an act of leniency that reduces the severity of the punishment imposed.  The NDRB presumes relevant and material details stated in the court-martial specifications to be established facts but will thoroughly review an Applicant’s record and issues submitted to determine if clemency is warranted.  After review of the Applicant's records, the Board determined that clemency was not warranted and that the sentence awarded the Applicant at her court-martial was appropriate for the offenses she committed.  Relief on this basis is denied.

The Applicant’s service was marred by a nonjudicial punishment (NJP) proceeding for violation of Article 86 of the UCMJ, and a special court-martial for violations of Articles 112a and 134 of the UCMJ.  The Applicant contends that these problems can be attributed to her being "young at the age of 21 years old" and making "the wrong decisions by using drugs to get out of the military."  While she may feel that her immaturity was the underlying cause of her misconduct, the record clearly reflects her willful misconduct and demonstrated she was unfit for further service.  The evidence of record did not show that the Applicant was either not responsible for her conduct or that she should not be held accountable for her actions.  Relief on this basis is 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 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.  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.  At this time, the Applicant has not provided sufficient documentation for the Board to consider an upgrade.

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 or any other evidence related to her 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, possession, etc. of controlled substances.

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