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Docket No. ND01-00540

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

 ex-MSSR, USN
Docket No. ND01-00540

Applicant’s Request

The application for discharge review, received 010319, requested that the characterization of service on the discharge be changed to honorable.  The applicant requested a personal appearance hearing discharge review before the Board in the Washington National Capital Region.  The applicant listed Veterans of Foreign Wars as the representative on the DD Form 293.

Decision

A personal appearance hearing discharge review was conducted in Washington, D.C. on 020312.  After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, NDRB discerned no impropriety or inequity in the characterization of the applicant’s service at the time of discharge.  After considering the applicant’s post service documentation and testimony, the Board voted four to one to grant clemency.  The discharge shall change to: Under Honorable Conditions (General)/Convicted by Special Court-Martial, authority: NAVMILPERSMAN, Article 3640420.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues (Verbatim)

1.  SECNAVINST 5420 174C 1.12 Clemency Discharge Post Service Accomplishments since separation- Return to the mainstream of American society as productive since discharge.

Documentation

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

Copy of DD Form 214
Letter from Applicant dated March 12, 2001
Letter of Appreciation dated October 4, 2000
Letter of Appreciation dated August 23, 2000
Newspaper Article irt (Letter from Capt J____ H___, Commanding Officer for Outstanding work)
Letter of Recommendation dated February 22, 2001
Employment Reference Letter dated February 14, 2001
Letter of Recommendation dated February 2, 2001
Employment Reference Letter dated February 27, 2001 
Character Reference Letter undated
Letter of Appreciation dated January 12, 2001
Reference Letter dated March 4, 2001
Reference Letter dated March 3, 2001
Character Reference Letter dated March 7, 2001
Letter of Commendation dated March 11, 2001
Character Reference Letter dated March 9, 2001
Reference Letter dated March 5, 2001
Reference Letter dated March 8, 2001
Reference Letter dated March 9, 2001
Reference Letter dated March 10, 2001
Employee Performance Review dated September 22, 2000 (2pgs)
Credit Report dated January 23, 2001 (2pgs)
Credit File dated January 22, 2001 (2pgs)
Personal Credit Report dated January 22, 2001(8pgs)
Certificate of Appreciation date February 1, 1988
Certificate of Completion (Mess Management Specialist Class "A" School dated October 21, 1988
Letter of Appreciation dated July 19, 1989
Catholic Church Confirmation date December 15, 1991
Letter of Appreciation dated March 2, 2001
Thank You Letter from Charles County School District dated February 13, 2001
Newsletter Article (Appreciation for Support in Community Service)
Character Reference Letter dated March 21, 2001
Character Reference Letter dated April 2, 2001
Character Reference Letter dated April 6, 2001
Certificate of Completion (Computer Aided Design II) dated August 8, 2001
Employee Performance Review dated September 28, 2001 (4pgs)
Dean List Congratulation Letter dated November 8, 2001
Team Excellence Award dated November 20, 2001  
Letter from Applicant dated December 18, 2001
Trident Technical College Transcript dtd 020306
South Carolina Dept. of Public Safety (DMV)-Driving Record
Charleston Police Department Criminal Record Check dtd 020213
City of North Charleston Police Department Record Check dtd 020215Character Character Reference from Mr. R_Q. R_ dtd 020214
Character Reference from Ms. P_ L. R_ dtd 020222
Trident Technical College Certificate of completion dtd 000501
Roper Hospital Professional Laboratory Drug Test 020219
Quest Diagnostics Random Drug test dtd 020304
Roper Hospital Drug Test Results (2 pages) dtd 020311
The Chronicle- Nov/Dec 2001- Notice of recognition

PART II - SUMMARY OF SERVICE

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

	Active:   USN			None
	Inactive: USNR (DEP)	870728 - 880606	COG

Period of Service Under Review:

Date of Enlistment:  880607		Date of Discharge:  900823

Length of Service (years, months, days):

	Active:    02  02  17
	Inactive:  None

Age at Entry:  20			Years Contracted:  4 

Education Level:  12			AFQT:  65

Highest Rate:  MSSA

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.50 (2)	Behavior:  2.30 (2)		OTA:  3.50

Military Decorations:  None

Unit/Campaign/Service Awards:  LOA 

Days of Unauthorized Absence:  None 

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:

890720:	NJP for violation of UCMJ, Article 112A: Wrongful use of a controlled substance, to wit: marijuana on 890620.
	Award:  Forfeiture of $100.00 per month for 2 months, reduction to E-1.  No indication of appeal in the record.

891106:	Special Court Martial 
	Charge I:  violation of the UCMJ, Article 112A: Specification: Use of marijuana on 890809.  
	Findings:  to Charge I and specification thereunder, guilty.
	Sentence:  CHL for 30 days, Bad Conduct discharge.
	CA 891226:  Sentence approved and ordered executed, except for bad conduct discharge.
	SA:  see SSPCMO.

891117:	Waived clemency review [Extracted from NC&PB Computer system].

891118:	From confinement; to appellate leave.

900328:	NMCCMR:  The findings of guilty and sentence, as approved on review, are affirmed.

900706:	COMA:  Request for appeal denied.

900823:	SSPCMO:  Article 71c, UCMJ, having been complied with, Bad Conduct discharge ordered executed.		

001005:	NDRB documentary record review Docket Number ND00-00530 conducted.  Determination:  discharge proper and equitable; relief not warranted.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was separated from military service on 900823 with a bad conduct discharge due to conviction by Special Court-Martial (A).  The Board presumed regularity in the conduct of governmental affairs (B).  After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, the Board found that the discharge was proper and equitable (C and D) at the time of discharge.  However, after considering the applicant’s testimony and post service documentation, the Board determined that clemency is warranted.  The Board found after considering the significant and substantial progress the applicant has made since her discharge, demonstrated through verifiable documentation regarding her sobriety and citizenship, that clemency in the characterization of the discharge is warranted.  The Board voted four to one to change the discharge to Under Honorable Conditions (General) and voted unanimously that the reason for discharge will remain the same.

The applicant’s issue requested a Clemency Discharge based on SECNAVINST 5420 174C 1.12.  The Board did not find relief is warranted under the Clemency Discharge.  The referenced article 1.12 specifically refers to clemency of the Presidential Proclamation 4313 of September 16, 1973.  The Board found this article does not apply in the applicant’s case.

Pertinent Regulation/Law (at time of discharge)

A.  The Naval Military Personnel Manual, (NAVPERS 15560A), Change 9, effective 14 Dec 89 until 14 Aug 91, Article 3640420, DISCHARGE OF ENLISTED PERSONNEL ADJUDGED BY SENTENCE OF COURT‑MARTIAL

B.  Secretary of the Navy Instruction 5420.174C of 22 August 19984 (Manual for Discharge Review, 1984) enclosure (1), Chapter 2, paragraph 2.24, COURT-MARTIAL SPECIFICATION, PRESUMPTION CONCERNING.

C.  Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 9, paragraph 9.2, PROPRIETY OF THE DISCHARGE.

D.  Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 9, paragraph 9.3, EQUITY OF THE DISCHARGE.

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 "afls10.jag.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:

		Naval Council of Personnel Boards
		Attn:  Naval Discharge Review Board
		720 Kennon Street SE Rm 309
		Washington Navy Yard DC  20374-5023

The remaining portion of this document is divided into 4 Parts: Part I - Applicant’s Issues and Documentation, Part II - Summary of Service, Part III – Rationale for Decision and Pertinent Regulation/Law, Part IV - Information for the Applicant.
INDEX:  A6800/A9221