ex-ADAR, USN 

Current Discharge and Applicant’s Request

Application Received:  20081205
Characterization of Service Received:  
Narrative Reason for Discharge: 
Authority for Discharge:  MILPERSMAN 

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

Summary of Service

Prior Service:
Inactive: USNR (DEP)	20010711 - 20020702  	Active:	

Period of Service Under Review:
Date of Enlistment:  20020703	Age at Enlistment:  
Period of Enlistment:   Years   Extension
Date of Discharge:  20070828	Highest Rank/Rate:  ADAN
Length of Service:   Year(s)     Month(s)   10 Day(s)
Education Level:  	AFQT:  NFIR
Evaluation Marks:	Performance:  3.0 (3)	Behavior:  3.0 (3)	OTA:  2.66

Awards and Decorations (per DD 214):	NDSM GWOTSM SSDR NUC

Pre-trial CONF:  20040708-20041021

NJP:  
- 20030518:	Article 91 (Insubordinate conduct)
	Article 92 (Failure to obey order or regulation)
	Awarded: 3 DAYS BW  Suspended:  

- 20030907:	Article 92 (Fail to obey order or regulation)
	Article 134 (False or unauthorized pass offenses)
	Awarded:      Suspended:   
SCM:  

SPCM:  

- 20041022:	Article 81 (Conspiracy)
	Article 112a (Wrongful use, possession, etc., of controlled substance, cocaine) 
	Sentence:  BCD; CONF 90 DAYS RIR E-1
CC:  

Retention Warning Counseling:  

- 20030907:	For violation of UCMJ, Article 92, failure to obey order or regulation; Article 134, false or unauthorized pass offenses

Types of Documents Submitted/reviewed

Related to Military Service:	
                                         DD 214:  	 Service/Medical Record:  		  Other Records:  

Related to Post-Service Period:	
	Employment:			Finances:			Education/Training:	
	Health/Medical Records:		Substance Abuse:			Criminal Records:	
	Family/Personal Status:		Community Service:		References:		
              Additional Statements:
                             From Applicant:  	From Representation:         	From Congress member:    

                    Other Documentation:  

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

Applicant’s Issues

1. Discharge unjust because of wrongdoing by his chain of command.
2. Facts of case hearsay and nothing ever proven.
3. Good Sailor.
4. Post-service conduct.

Decision

Date:  20090312		Location:  Washington D.C.	Representation:  

By a vote of  the Characterization shall  .
By a vote of  the Narrative Reason shall  .

Discussion

:  ()  .  The Applicant claims his discharge was unjust because all others involved [drug abusers] were given “Under Other Than Honorable” discharges, his master chief lied about him, and his squadron failed to communicate with him or provide requested items during his confinement in the brig.  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.  

Based upon available records, there is no indication the Applicant’s discharge was in any way inconsistent with the standards of discipline in the United States Navy.  As outlined in the Manual for Courts Martial (2008 edition) and other Navy regulations, commanding officers have discretion in imposing disciplinary action upon service members under their authority, on a case-by- case basis, in the manner and forum they deem most appropriate, based on the seriousness of the offense (s) committed, age, length of service, rank, overall performance, etc., of the service member.  

The Applicant has not provided any evidence to support the contention that his master chief made false statements about him.  In regard to the allegations the squadron failed to communicate with and provide needed items to the Applicant while in the brig, the record of trial transcript (ROT), page 57, reflects the Applicant did inform the judge of the command’s lack of attention to him command while in pretrial confinement and the Applicant agreed to waive or give up his right to make a motion or appeal this issue of pretrial punishment when he signed the pre-trial agreement.  Furthermore, per page 62 of the ROT, the Applicant was advised of the right to bring this matter to the court’s attention during the sentencing phase of the trial and did in fact present it as a matter for the judge’s consideration during sentencing as noted on page 112 of the ROT. 

The Applicant claims the facts of the case were hearsay and nothing was ever proven is without merit and contradicted by the evidence contained in the ROT which indicates the Applicant requested a judge alone trial where he underwent extensive questioning by the judge, plead guilty and was found guilty of conspiring with another Machinist’s Mate to wrongfully distributing cocaine, collecting some amount of cocaine, marijuana, and psilocybin mushrooms, and wrongfully using and distributing cocaine.

Additionally, the Applicant’s contention he was a good sailor is without merit and contradicted by his service record which reflects that during this enlistment he had one retention warning, two NJPs for violations of the Uniform Code of Military Justice (UCMJ), Article 81 (Conspiracy), Article 91 (Insubordinate conduct), Article 92 (Failure to obey a lawful order), and Article 134 (False or unauthorized pass offense), and one SPCM conviction for violations of the UCMJ, Article 81 (Conspiracy) and Article 112a (Wrongful use, possession, distribution of controlled substances, cocaine).

After a thorough review of the Applicant’s record, issues submitted, and statement of post-service accomplishments, the Board determined that discharge awarded the Applicant at his court-martial was appropriate for the offenses he committed.  Therefore, relief is denied.

After a thorough review of the available evidence, to include the Applicant’s Summary of Service,  Record Entries, and Record of Trial, the Board found   

Pertinent Regulation/Law

A.  The Naval Military Personnel Manual, (NAVPERS 15560C), Change 12, effective 19 September 2005 until Present, Article 5815-010, EXECUTING A DISHONORABLE OR BAD CONDUCT DISCHARGE.

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.  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 V, Para 502, Propriety and Para 503, Equity.

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 or is referred to a court martial 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 or for any basis wherein an Other Than Honorable Discharge is authorized, 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 other medical related reasons.  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 special 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.  The NDRB does not have the jurisdictional authority to review a discharge or dismissal resulting from a general court-martial.

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