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

FOR OFFICIAL USE ONLY

  ex-AR, USNR
Docket No. ND05-00411

Applicant’s Request

The application for discharge review was received on 20050103.  The Applicant requests the Discharge Characterization of Service received at the time of discharge be changed to general (under honorable conditions) or entry level separation or uncharacterized.  The Applicant requests a documentary record discharge review.  The Applicant did not designate a representative on the DD Form 293.  

Decision

A documentary discharge review was conducted in Washington, D.C. on 20050915.  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 and reason for discharge shall not change.  The discharge shall remain as a bad conduct discharge by reason of court-martial conviction.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application: 

“I think my discharge should be upgraded because 1) it was improper discharge for the reason that I was discharged. 2) Others that were also involved with the situation that I was discharged received general/under honorable conditions discharge or under other than honorable conditions.  While I received a bad conduct discharge. 3) I was never offered any help to deal with the problem that I was discharged for which was Drugs.”

Documentation

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

Applicant’s DD Form 214
Certificate of Completion (Gowanda Correctional Facility DWI Treatment Program on September 20, 2002)
State of New York Dept of Correctional Services Aggression Replacement Training Program Evaluation Form dated April 6, 2004
Education Certificate (Appliance Repair) dated October 2002
Letter of Completion (Computer Repair Program) from Gowanda Correctional Facility Vocational Department dated January 10, 2005 

PART II - SUMMARY OF SERVICE

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

	Inactive:  None
	Active:    None

Period of Service Under Review:

Date of Enlistment:  19901215		Date of Discharge:  19940223

Length of Service (years, months, days):

	Active:    02  05  19  (Does not exclude lost time.)
	Inactive:  00  08  20

Time Lost During This Period (days):

	Unauthorized absence:	14 days
	Confinement:			36 days

Age at Entry:  19

Years Contracted:  8

Education Level:  12				AFQT:  53

Highest Rate:  AA

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  1.0 (1) 		Behavior:  1.0 (1) 		OTA:  2.0 

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214):  National Defense Service Medal.

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: 

910904:	Commenced active duty for a period of 24 months.

920826:	Applicant to unauthorized absence at 0700 on 920826.

920909:	Applicant from unauthorized absence at 2230 on 920909 (14 days).

920929:	NJP for violation of UCMJ, Article 86:  In that R_ J. W_ (Applicant) did, on or about 0700, 920826, without authority, absent himself from his unit, to wit: VF-11, on board NAS MIRAMAR, and did remain so absent until about 2230, 920909.
Violation of UCMJ, Article 121:  In that R_ J. W_ (Applicant), did, on board VF-11 on or about 20 June 1992, steal a military identification card, of an incomputable value, the property of AA A_ T_.
	Award:  Forfeiture of $395 per month for 2 months, restriction for 45 days, reduction to E-1.  No indication of appeal in the record.

921214:	Applicant was placed on pretrial restriction this date.

930222:	Pretrial restriction terminated this date.

930222:	Special Court Martial:
	Charge I:  violation of the UCMJ, Article 81, (3 Specifications); Specification 1:  In that the accused did, on or about 21 November 1992, conspire with AR D_ and AR M_ to break restrictions an order to effect the object of the conspiracy, transported AR D_ and AR M_ to Tijuana, Mexico.
Specification 2:  In that the accused did, on or about 25 November 1992, conspire with AR D_ and AR M_ to break restrictions an order to effect the object of the conspiracy, transported AR D_ and AR M_ to Tijuana, Mexico.
Specification 3:  In that the accused did, on or about 2 December 1992, conspire with AR D_ and AR M_ to break restrictions an order to effect the object of the conspiracy, transported AR D_ and AR M_ to Tijuana, Mexico.
Charge II:  violation of the UCMJ, Article 112a, (8 Specifications); Specifications 1:  In that the accused did, on or about 21 November 1992 wrongfully possess some amount of methamphetamine.
Specification 2:  In that the accused did, on or about 21 November 1992 wrongfully distribute some amount of methamphetamine.
Specification 3:  In that the accused did, on or about 21 November 1992 wrongfully use some amount of methamphetamine.
Specification 4:  In that the accused did, on or about 25 November 1992 wrongfully distribute some amount of methamphetamine.  
Specification 5:  In that the accused did, on or about 25 November 1992 wrongfully distribute some amount of methamphetamine.
Specification 6:  In that the accused did, on or about 2 December 1992 wrongfully possess some amount of methamphetamine.
Specification 7:  In that the accused did, on or about 2 December 1992 wrongfully distribute some amount of methamphetamine.
Specification 8:  In that the accused did, on or about 2 December 1992 wrongfully use methamphetamine.
Findings:  To Charge II and specifications 2, 5, and 7 thereunder, guilty.  Charge I and all the specifications thereunder, specifications 1, 3, 4, 6, and 8 of Charge II were withdrawn and dismissed without prejudice.
Sentence:  Confinement for 45 days, forfeiture of $400 per month for 2 months, Bad Conduct discharge.
	CA 930325:  The sentence is approved and, except for that part of the sentence extending to a bad conduct discharge, will be executed.
		
930222:	Joined the Naval Consolidated Brig Miramar, San Diego, California, for confinement.

930331:	From confinement, restored to full duty. 

930419:	Drug and Alcohol Abuse Report: Self referred for Amphetamine abuse, found dependent, not eligible for treatment, recommended for separation via VA hospital.

930506:	Applicant to appellate leave.

931104:	NMCCMR:  The findings of guilty and sentence, as approved on review, 
	are affirmed.

940216:	Appellate review complete.

940223:	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 19940223 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).  After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, the Board found that the Applicant’s issues were insufficient to merit clemency (C).

Under applicable regulations, relevant and material facts stated in a court-martial specification for which the Applicant was convicted 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.  The Applicant was convicted at special court-martial of three specifications of UCMJ Article 112a, methamphetamine distribution, including an instance of distribution on a military installation.  In addition, the reason for discharge, convicted by special court-martial, is most appropriate.  Relief denied.

The Applicant contends that his discharge merits clemency because other service members were punished less harshly for similar misconduct.  The Board reviews an Applicant’s discharge individually, on a case-by-case basis.  If such a review indicates that an Applicant’s punishment was in any way inconsistent with the standards of discipline of the Naval service, clemency may be in order.  Based upon available records, nothing indicates that the Applicant’s discharge was in any way inconsistent with the standards of discipline in the United States Navy.  Distribution of controlled substances to other service members is a very serious offense and, in the Applicant’s case, his offense was aggravated by the fact it occurred on a military installation.  By unanimous vote, the NDRB concluded that the award of a punitive discharge for the Applicant’s misconduct is not inconsistent with the standards of discipline in the United States Navy.  As such, discharge characterizations, received by other service members for similar misconduct, are irrelevant.  Relief denied.

The Applicant contends his discharge was improper because he never received treatment for his drug dependency.  The evidence of record indicates that on the Applicant’s Drug and Alcohol Abuse Report (DAAR) he was determined to be drug dependent by a Naval medical officer and recommended for VA treatment upon separation.  The evidence of record is not clear as to whether the Applicant ever received or even offered treatment for his drug dependency.  Nevertheless, even if the Applicant was improperly denied the VA treatment, the NDRB is convinced that such an error would have been procedural in nature and not prejudicial to the Applicant’s separation from active duty or to the characterization of his service.  Therefore, if such an error occurred, it would afford the Applicant no relief.  There is little doubt to the NDRB that the discharge would have remained the same if such an error had not been made and thus relief based upon such an error is not warranted.

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 could be provided to the Board include proof of educational pursuits, verifiable employment records, documentation of community service, and certification of non-involvement with civil authorities.  The Board received and considered all of the Applicant’s submissions, including his successful completion of DWI treatment, completion of aggression replacement training, and certificates of appliance and computer repair.  After careful consideration, the Board concluded the Applicant’s post-service achievements have been insufficient to mitigate his misconduct while in the Naval service.  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 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, Para 205(2), Jurisdictional Limitations Authority for Review of Discharges.

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