NAVAL DISCHARGE REVIEW BOARD (NDRB)
                     DISCHARGE REVIEW
                   DECISIONAL DOCUMENT

FOR OFFICIAL USE ONLY

ex-AR, USN
Docket No. ND06-00783

Applicant’s Request

The application for discharge review was received on 20060523.  The Applicant requests the Discharge Characterization of Service received at the time of discharge be changed to general (under honorable conditions).  The Applicant requests a personal appearance hearing before the Board in the Washington, D.C. Metropolitan area.  The Applicant designated American Legion as the representative on the DD Form 293.  Subsequent to the application, the Applicant requested a documentary record discharge review in lieu of a personal appearance hearing,

Decision

A personal appearance discharge review was conducted in Washington, D.C. on 20070207.  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 characterization of the discharge shall not change.  The discharge shall remain as a bad conduct discharge by reason of court-martial conviction.

PART I - ISSUES AND DOCUMENTATION

Decisional Issues:

Clemency based on post-service accomplishments

Documentation

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

Applicant’s DD Form 214  (Request Copy 4)
Metropolitan Police Department Washington, D C Criminal History Request, dtd April 24, 2006
Applicant’s Resume  (2 pages)
Character Reference ltr from R_ J. S_, M. D., Urological Consultants, PA, dtd December 5, 1996
Character Reference ltr from E_ C. G_, M. D., Urological Consultants, PA, dtd December 10, 1996
Character Reference ltr from M_ H. R_, M. D., Urological Consultants, PA, dtd December 23, 1996
Character Reference ltr from G_ S. F_, M. D., Urological Consultants, PA, dtd March 3, 1997
Character Reference ltr from R_ J. M_, Esq., dtd January 26, 1999
Character Reference ltr from T_ Y. A_, Esq., dtd January 28, 1999
Character Reference ltr from A_ M. W_, Esq., dtd March 2, 1999
Character Reference ltr from J_ B. W_, dtd May 12, 2001
Character Reference ltr from C_ M. D_, Adjunct Professor of Law, David A. Clarke School of Law, dtd May 16, 2001
Comments from D_ L. S_, dtd February 16, 2006
Comments from D_ H_, dtd February 17, 2006
Ltr from Martha’s Table, O_ V. I_, Director of Operations, dtd October 2, 1996
Ltr from Public Defender Service, Community Defender Program, K_ S_, Community Re-entry Program Coordinator, dtd August 17, 2004
Ltr from The See Forever Foundation, C_ D. H_, Program Coordinator, dtd May 9, 2005
Ltr from The See Forever Foundation, K_ S_, Volunteer Coordinator, dtd December 20, 2004
Ltr from Saint Paul African Methodist Episcopal Church, A_ V. A_, Trustee, May 25, 2001
Ltr from Saint Paul African Methodist Episcopal Church, Rev K_ J_, Acting Chairman, Board of Directors, dtd April 16, 2001
Character Reference ltr from Rev. Dr. R_ H_ R_ Sr., dtd August 30, 2000
Ltr from University of the District of Columbia, D_ G. L_, Sr., dtd February 14, 2001
Certificate of Achievement for participating in the Minority Access, Inc. 2001 Summer Intern Program, dtd August 9, 2001
Academic Achievement Award, Dean’s List, dtd April 27, 2000
Academic Achievement Award, Dean’s List, dtd April 15, 1999
Academic Achievement Award, Dean’s List, dtd April 16, 1998
Certificate of Recognition for Active Participation in the 8th Annual Electrical Engineering Day, April 20, 1998
Law Review Certificate for meritorious service from UDC, dtd March 29, 2001
Juris Doctorate degree from UDC, dtd May 14, 2005
Bachelor of Science degree, dtd December 18, 1998
Associate of Arts degree in Applied Science, dtd December 21, 1999
Ltr from M_ M. J_, Counselor EDS, Department of Human Services, District of Columbia dated Dec 4, 1998.
Character Reference ltr from B_ B_ , dtd July 10, 1999
Character Reference ltr from I_C_ H_, dtd July 9, 1999
Ltr from T_ D. J_, United States Probation Officer, U.S. District Court
Applicant’s student identification from UDC for the Fall 2006 and Spring 2007 terms.
Character reference ltr from Saint Paul African Methodist Episcopal Church, Rev. Dr. C_ C_, Pastor, dtd September 27, 2006
Unofficial transcripts for Summer and fall 2006
Certificate of Selection to Delta Mu Delta, dated 2006
Reference ltr from Prof. N_ R_ undated.
Reference ltr from H_ H. M_, Department Chair, dated Jan 22, 2007.
Applicant’s Election Flyer for DC Ward Council

PART II - SUMMARY OF SERVICE

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

	Inactive:  USNR (DEP)	19900926 – 19901210	COG
	Active:    None

Period of Service Under Review:

Date of Enlistment:  19901211		Date of Discharge:  19920420

Length of Service (years, months, days):

	Active:    01  04  09  (Does not exclude lost time.)
	Inactive:  None

Time Lost During This Period (days):  

	Unauthorized absence:  6 days
	Confinement:		  90 days

Age at Entry:  27 

Years Contracted:  4 

Education Level:  15L				AFQT:  77

Highest Rate:  AN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  NA*		Behavior:  NA*		OTA:  NA*

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

* Not Available

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: 

900926:	Admitted to the following pre-service civil involvement:  wrongful use of a check (881213).  Also admitted pre-service drug use.

901212:	Applicant acknowledged being briefed on the Navy’s Drug and Alcohol abuse policy.

910620:	Summary Court Martial 
	Charge I:  violation of the UCMJ, Article 112a:  Wrongful use of cocaine.
	Specification:  Did, between on or about 910218 and 910304 wrongfully use cocaine, a schedule II controlled substance.  
	Sentence:  Forfeiture of $562.00 pay per month for 1 month, reduction to E-2.
	CA 910628:  In accordance with the terms of the pre-trial agreement, the sentence approved and ordered executed.  
	SA:  see SSPCMO.

910913:	Applicant to unauthorized absence at 1100.

910918:	Applicant from unauthorized absence at 0740 (5 days/surrendered).

911007:	Medical Officer’s evaluation found Applicant cocaine and alcohol abuse/dependant.  Recommended Level III treatment at VAMC.

920206:	Special Court Martial 
	Charge I:  violation of the UCMJ, Article 83:  
	Specification: In that Airman Apprentice K_ E_ A_ [Applicant], U. S. Navy on active duty, Naval Air Technical Training Center, Naval Air Station Memphis, Millington, Tennessee did, at Military Entrance Processing Station, Pittsburg, Pennsylvania, on or about 11 December 1990, by means of knowingly false representations that his only pre-enlistment involvement with police was a misdemeanor arrest for wrongful use of a check, when in fact he had been convicted of possession of phencyclidine (PCP) and attempted possession of marijuana, procure himself to be enlisted as an E-3 in the United States Navy, and did thereafter, at Naval Air Technical Training Center, Naval Air Station Memphis, receive pay and allowances under the enlistment so procured. 
	Plea:  Guilty		Findings:  Guilty
	Charge II:  violation of the UCMJ, Article 86:  
	Specification: In that Airman Apprentice K_ E_ A_ [Applicant], U. S. Navy on active duty, Naval Air Technical Training Center, Naval Air Station Memphis, Millington, Tennessee did, on or about 910913, without authority, absent himself from his organization, to wit:  Naval Air Technical Training Center, Naval Air Station Memphis, located at Millington, Tennessee, and did remain so absent until on or about 910918.
	Plea:  Guilty		Findings:  Guilty
	Charge III:  violation of the UCMJ, Article 112a:  
	Specification: In that Airman Apprentice K_ E_ A_ [Applicant], U. S. Navy on active duty, Naval Air Technical Training Center, Naval Air Station Memphis, Millington, Tennessee, did, at or near Memphis, Tennessee, between 910904 and 910918, wrongfully use cocaine.
	Plea:  Guilty		Findings:  Guilty
	Charge IV:  violation of the UCMJ, Article 134:  
Specification 1:  In that Airman Apprentice K_ E_ A_ (Applicant), U. S. Navy on active duty, Naval Air Technical Training Center, Naval Air Station Memphis, Millington, Tennessee, did, at Navy Exchange, located at Naval Air Station Memphis, Millington, Tennessee, on or about 910703, make and utter to Navy Exchange a certain check, in words and figures as follows, to wit:  [Check #118 to NEX for the amount of $150 was affixed to specification] for the purpose of obtaining case, and did thereafter dishonorably fail to maintain sufficient funds in the Navy Memphis Federal Credit Union for payment of such check in full upon its presentment for payment.
Specification 2:  In that Airman Apprentice K_ E_ A_ (Applicant), U. S. Navy on active duty, Naval Air Technical Training Center, Naval Air Station Memphis, Millington, Tennessee, did, at Navy Exchange, located at naval Air Station Memphis, Millington, Tennessee, on or about 910705, make and utter to Navy Exchange a certain check, in words and figures as follows, to wit:  [Check #120 to NEX for the amount of $100 was affixed to specification] for the purpose of obtaining case, and did thereafter dishonorably fail to maintain sufficient funds in the Navy Memphis Federal Credit Union for payment of such check in full upon its presentment for payment.
Specification 3:  In that Airman Apprentice K_ E_ A_ (Applicant), U. S. Navy on active duty, Naval Air Technical Training Center, Naval Air Station Memphis, Millington, Tennessee, did, at Navy Exchange, located at Naval Air Station Memphis, Millington, Tennessee, on or about 910707 make and utter to Navy Exchange a certain check, in words and figures as follows, to wit: [Check #121 to NEX for the amount of $150 was affixed to specification] for the purpose of obtaining case, and did thereafter dishonorably fail to maintain sufficient funds in the Navy Memphis Federal Credit Union for payment of such check in full upon its presentment for payment.
Specification 4:  In that Airman Apprentice K_ E_ A_ (Applicant), U. S. Navy on active duty, Naval Air Technical Training Center, Naval Air Station Memphis, Millington, Tennessee, did, at Navy Exchange, located at Naval Air Station Memphis, Millington, Tennessee, on or about 910708 make and utter to Navy Exchange a certain check, in words and figures as follows, to wit: [Check #122 to NEX for the amount of $150 was affixed to specification] for the purpose of obtaining case, and did thereafter dishonorably fail to maintain sufficient funds in the Navy Memphis Federal Credit Union for payment of such check in full upon its presentment for payment.
Specification 5:  In that Airman Apprentice K_ E_ A_ (Applicant), U. S. Navy on active duty, Naval Air Technical Training Center, Naval Air Station Memphis, Millington, Tennessee, did, at Navy Exchange, located at Naval Air Station Memphis, Millington, Tennessee, on or about 910710 make and utter to Navy Exchange a certain check, in words and figures as follow, to wit:  [Check #123 to NEX for the amount of $33.25 was affixed to specification] for the purpose of obtaining case, and did thereafter dishonorably fail to maintain sufficient funds in the Navy Memphis Federal Credit Union for payment of such check in full upon its presentment for payment.
Charge IV and all specifications thereunder were withdrawn.
	Sentence:  Confinement for 90 days, forfeiture of $523.00 pay per month for 3 months, reduction to E-1, Bad Conduct discharge.
	CA 920320:  In accordance with the terms of the pre-trial agreement, and the sentence approved and ordered executed

920221:	Applicant waived Appellate review.

undated:	Judge Advocate Review per UCMJ Article 64.  The SJA found that the court martial had jurisdiction of the accused and each offense, that each specification stated an offense, and that the sentence was within the limits prescribed and was therefore legal.  

920407:	SSPCMO:  Article 71c, UCMJ, having been complied with, Bad Conduct discharge ordered executed.

950717:	NDRB documentary record review Docket Number ND95-00685 conducted.  Determination: discharge proper and equitable; relief not warranted.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19920420 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).  The Board presumed regularity in the conduct of governmental affairs (D).

The Applicant requests upgrade of his punitive discharge to a general (under honorable conditions) characterization.  In response to the Applicant’s request, relevant and material facts stated in a court-martial specification are presumed by the NDRB to be established facts.  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.  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.

The following is provided for the edification of the Applicant.  The Applicant has exhausted his opportunities for review by the NDRB.  The Applicant may, however, petition the Board for Correction of Naval Records (BCNR), 2 Navy Annex, Washington, DC 20370-5100, concerning a change in the characterization of Naval service, if he desires further review of his case.

Pertinent Regulation/Law (at time of discharge)

A.  Naval Military Personnel Manual, (NAVPERS 15560C), effective 15 Aug 91 until 04 Mar 93, 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 (use of a controlled substance) and 83 (fraudulent enlistment).

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.

D.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part II, Para 211, Regularity of Government Affairs

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 Instruction 1332.28, you may submit a complaint in accordance with Enclosure (5) of that Instruction.  You should read Enclosure (5) of the Instruction 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 Instruction 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