ex-SWCR, USN
ND07-00342

Current Discharge and Applicant’s Request

Application Received:  20070125 		Characterization Received:  
Narrative Reason:  COURT-MARTIAL CONVICTION Authority:  MILPERSMAN 3640420

Applicant’s Request:	Characterization change to:  
			Narrative Reason change:   

Applicant’s Issues:	1.  One isolated incident in eight years of service.

Decision

By a vote of  the Characterization shall  .	
By a vote of  the Narrative Reason shall  COURT-MARTIAL CONVICTION.

Date:  20071018       					Location:  Washington D.C. 	

Discussion

Issue 1 ():  The Applicant states his discharge was based on one isolated incident.  Despite a servicemember’s prior record of service certain serious offenses even though isolated warrant separation from the naval service in order to maintain proper order and discipline.  The record documents the Applicant’s in-service use of illegal drugs, which is the basis for his discharge.  The Applicant’s case was heard at a special court martial and subsequently reviewed through the appellant review process.  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 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. 

Summary of Service

Prior Service:
Inactive: USNR (DEP)	19870311 - 19870812  		Active:   
Period of Service Under Review:
Date of Enlistment: 19870813	Years Contracted:  ; Extension: 28 Months; 	Date of Discharge:  19950920
Length of Service:  08 Yrs 01 Mths 08 Dys				Lost Time:  
Education Level:  GED		Age at Enlistment:  	AFQT:  31	Highest Rank/Rate:  SW3
Evaluation marks (# of occasions):	Performance:  3.9		Behavior:  3.8	 OTA:  3.80 (8)
Awards and Decorations (per DD 214):  M16 EXPERT BADGE, NATIONAL DEFENSE SERVICE MEDAL, OVERSEAS SERVICE RIBBON(SOS), MERITORIOUS UNIT COMMENDATION, GOOD CONDUCT MEDAL, HUMANITARIAN SERVICE MEDAL

Medical/Service Record Entries Related to Characterization of Service or Basis for Discharge

19930512:	Applicant hospitalized as a result of heroin and alcohol overdose.  Blood test for opiate - positive

19931022:	Applicant signed appellate rights statement.

19931025:	At Special Court Martial Applicant plead guilty and was found guilty of violations of UCMJ Articles 92 and 112a for possessing drug paraphernalia and using heroin.

19940412:	Medical Record:  Applicant declined alcohol or drug dependency treatment.

Discharge Process

Charges and Specifications:  Article 81 (2 specs), (1) Conspire to possess heroin, (2) Conspire to use heroin; Article 92 (2 specs), (1) Wrongfully possess two ID cards, (2) Possess drug paraphernalia; Art. 112a Use of heroin.
Preferred:  19930811	Court-martial:  19931026	Findings:  Guilty of Articles 92 and 112a
Sentence:  BCD; RIR E-1;		CA action:  19940126
NC&PB Action:  Clemency: 	Restoration:  
Appellate Review Complete:  19950831	BCD ordered executed:  19950920 SSPCMCO No. 95-1659
Applicant Discharged:  19950920

Types of Documents Submitted by Applicant and Considered By Board

Related to Military Service:	Service and/or Medical Record:  		Other Records:  

Related to Post-Service Period:  	
	Employment:  			Finances:  			Education: 		
	Health/Medical Records:  		Substance Abuse:			Criminal Records:  	
	Family/Personal Status: 		Community Service:  		References:  		
	
Additional Statements From Applicant:  	From Representative:    
Other Documentation (Describe) 

Pertinent Regulation/Law

A.  Naval Military Personnel Manual, (NAVPERS 15560C), Change 5, effective 5 March 1993 until 2 October 1996, Article 3640420, DISCHARGE OF ENLISTED PERSONNEL ADJUDGED BY SENTENCE OF COURT-MARTIAL

B.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part IV, Para 403m(7)(a), Presumption Concerning Court-Martial Specifications.

C.  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, Articles 91 and 112a.

ADDENDUM:  Information for the Applicant

Complaint Procedures:  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 to the Joint Service Review Activity, OUSD (P&R) PI-LP, The Pentagon, Washington, DC  20301-4000.  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.”

Additional Reviews:  Subsequent to a document review, former members are eligible for a personal appearance hearing, provided the application is received at the NDRB within 15 years from the date of discharge.  The Applicant can provide documentation to support any claims of post-service accomplishments or any additional evidence related to this discharge.  Representation at a personal appearance hearing is recommended but not required.  If a former member has been discharged for more than 15 years, has already been granted a personal appearance hearing or has otherwise exhausted his opportunities before the NDRB, the Applicant may petition the Board for Correction of Naval Records (BCNR), 2 Navy Annex, Washington, DC 20370-5100 for further review.

Service Benefits:  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.

Employment/Educational Opportunities:  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 of the propriety and equity of the discharge.  

Reenlistment/RE-code:  Since the NDRB has no jurisdiction over reenlistment, reentry, or reinstatement into the Navy, Marine Corps, or any other of the Armed Forces, the NDRB is not authorized to change a reenlistment code.  Only the Board for Correction of Naval Records (BCNR) can make changes to reenlistment codes.  Additionally, the Board has no authority to upgrade a discharge for the sole purpose of enhancing reenlistment opportunities.  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.

Medical Conditions and Misconduct:  DoD disability regulations do not preclude a disciplinary separation.  Appropriate regulations stipulate that separations for misconduct take precedence over potential separations for other reasons.  Whenever a member is being processed through the Physical Evaluation Board, and subsequently is processed for an administrative involuntary separation for misconduct, the disability evaluation is suspended.  The Physical Evaluation Board case remains in suspense pending the outcome of the non-disability proceedings.  If the action includes either a punitive or administrative discharge for misconduct, the medical board report is filed in the member’s terminated health record.  Additionally, the NDRB does not have the authority to change a narrative reason for separation to one indicating a medical disability or “PTSD.”  Only the Board for Correction of Naval Records can grant this type of narrative reason change.  

Automatic Upgrades - 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 may 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.  

Issues Concerning Bad-Conduct Discharges (BCD) – Because relevant and material facts stated in a court-martial specification are presumed by the NDRB to be established facts, issues relating to the Applicant’s innocence of charges for which he was found guilty cannot form a basis for relief.  With respect to a discharge adjudged by a court-martial, 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.  

Board Membership:  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