Author: CAP
Last saved by: shirley.robertson
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Docket No. ND03-01446

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

ex-HA, USN
Docket No. ND03-01446

Applicant’s Request

The application for discharge review was received on 20030909.  The Applicant requests the characterization of service received at the time of discharge be changed to honorable.  The Applicant requests a documentary record review.  The Applicant did not list any representative on the DD Form 293.  In the acknowledgement letter, the Applicant was informed that he was approaching the 15 year point for review by this Board and was encouraged to attend a personal appearance hearing in the Washington D.C. Area.  Applicant elected a personal appearance hearing and obtained representation from the Veterans of Foreign Wars.  Subsequent to the Applicant’s election, the NDRB elected to first proceed with a documentary record review.

Decision

A documentary review was conducted in Washington, D.C. on 20040922.  After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, an impropriety 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 shall change.  The Board’s vote was 3 to 2 that the discharge shall be: UNDER HONORABLE CONDITIONS (GENERAL)/END OF ACTIVE OBLIGATED SERVICE, authority: NAVMILPERSMAN, Article 3620150.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

“The following issues are the reason I believe my discharge should be upgraded to Honorable.  If you disagree, please explain in detail why you disagree.  The presumption or regularity that might normally permit you to assume that the service acted correctly in characterizing my service as “Bad Conduct” does not apply to my case because of the evidence I am submitting.

1.  My high aptitude scores and level of education show my commitment & dedication to my carreer in the Navy.

2.  My good conduct and efficiency rating/behavior and proficiency marks were above average throughout my military service even after first offense.

3.  I received numerous letters of outstanding performance by Commanding Officer Naval Hospital San Diego.

4.  I was recommended for retention and advancement by CDR S__ L.G. Dir for Naval Hospital San Diego (ADMIN).

5.  The availability and permisable use/sale of alcohol on base to a 19 year old sailor impaired my ability to make the right decisions regarding drug experimentation.

6.  My discharge was based on two minor/isolated offenses in a 3 year 5 month period of time.  My discharge & punishment was much worse than most people got for the same offense, and also with todays standards.

7.  My command abused its authority when it decided to discharge me even after selecting myself to represent the Navy for the Marine Corps birthday celebration after my first offense.  My second offense deeply offended my C.O. who personally choose me for the ceremony.

8.  I was close to finishing my tour/enlistment as a combat corpsman that it was unfair to give me a bad conduct discharge.

9.  I pleaded for compassion and reasingment but was represented by counsel who was unwilling to fight or offer me a proper defense at court-martial.

10.  I have been & continue to be a good citizen since discharge.  I have also been a good son, brother, uncle and American inventor contributing to protecting police, EMT and possibly military soldiers.

11.  Clemency is warranted because it is truly an injustice for me to continue to suffer the adverse consequences of a bad conduct discharge.  I wake up every morning for the past 13 years and think about my experimentation to drugs and how such minor offenses have ruined my life financially and psychologically.  Please consider my request.  I have suffered enough.”

Documentation

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

Copy of DD Form 214
Letter of Appreciation from LCDR B__ N__, NC USN RET to Commanding Officer Naval Hospital San Diego 
Letter of Commendation from Commanding Officer Naval Hospital San Diego 
Copy of Enlisted Performance Evaluation Report 
Copy of Certificate of Graduation (Instruction for Hospital Corps)
Copy of Certificate of Completion (Field Medical Technique)
Copy of Certificate of Completion (Level II Substance Abuse Education Course)
Copy of Certificate of Completion (45 hour Real Estate Principle (Resident Lecture))
U.S. Patent Documentation (4 pages)

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	861118 - 870104	COG
	Active:   USN			None

Period of Service Under Review:

Date of Enlistment:  870105		Date of Discharge:  920324

Length of Service (years, months, days):

	Active:    05  02  00 (excludes lost time)
	Inactive:  None

Age at Entry:  17			Years Contracted:  4 

Education Level:  11			AFQT:  72

Highest Rate:  HA

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.25 (4)	Behavior:  3.00 (4)		OTA:  3.45

Military Decorations:  None

Unit/Campaign/Service Awards:  None

Days of Unauthorized Absence:  None

Character, Narrative Reason, and Authority of Discharge (at time of issuance):

BAD CONDUCT/CONVICTION BY SPECIAL COURT MARTIAL, authority: NAVMILPERSMAN, Article 3640420.

Chronological Listing of Significant Service Events:

890606:	Retention Warning:  Advised of deficiency (Use of controlled substance (Cocaine)), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

890908:	Special Court Martial [trial date 890908]
	Charge I:  violation of the UCMJ, Article 112a: Wrongfully use cocaine on or about 891101. 
	Findings:  to Charge I and specification thereunder, guilty.
	Sentence:  Confinement for 30 days, forfeiture of $300.00 pay per month for 1 month, reduction to E-1.
	CA 900130:  Approved findings and sentence.

891023:	Retention Warning:  Advised of deficiency (Unlawful use of controlled substance (Special Court Martial 890908), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 

900205:	Special Court Martial
	Charge I:  violation of the UCMJ, Article 112a: Wrongfully use cocaine on or about 891101. 
	Findings:  to Charge I and specification thereunder, guilty.
	Sentence:  Confinement for 30 days, forfeiture of $480.00 pay per month for 1 month, Bad Conduct discharge.
	CA 900621:  Approved findings and sentence, forfeiture was not deducted from HR M__ as he was placed on appellate leave 900307.
	
900205:	Joined Base Brig, Marine Corps Base, Camp Pendleton, California, for confinement.

900307:	From confinement; to appellate leave.

901002:	NC&PB clemency not granted; restoration denied.

910127:	Applicant’s Active Obligated Service expires.

910308:	NMCCMR:  The findings of guilty and sentence were set aside.  Remanded the case to the JAG and stated a rehearing may be ordered.  

920304:  	SJA Recommendation:  Not order a rehearing because such action is impracticable and recommended set aside findings of guilty and the sentence and dismiss the charge.  Further recommend restore all rights, privileges and property.  Member can be separated administratively pursuant to USNAVMILPERSMAN 15560A, para 3620200.1(k) (Review Action).  

920324:	SSPCMO:  Article 71c, UCMJ, prior to taking action, considered the recommendation of the SJA and a rehearing would be impracticable, and therefore, the findings of guilty and the sentence are hereby set aside and the charge dismissed.  

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19920324 with a bad conduct due to conviction by special court-martial.  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 improper. (C and D).

Issues 1 through 11:  Normally, to permit relief, an impropriety or inequity must have existed during the period of enlistment in question.  A review of the Applicant’s record reveals an impropriety is evident during the Applicant’s enlistment and relief is warranted.  According to the Applicant’s records, the Applicant was convicted of one specification of a violation of UCMJ Article 112, wrongful use of a controlled substance on 900205.  The Navy Marine Corps Court of Military Review set aside his Special Court-Martial conviction and sentence on 910308 and returned the case to the Judge Advocate General of the Navy for disposition.  The Judge Advocate General returned the case to the original convening command for a possible rehearing or dismissal of the charges altogether.  On 920324, based on the advice of the Command Staff Judge Advocate, the Convening Authority dismissed the charge and ordered all rights, privileges, and property of the Applicant, which had been deprived by virtue of the sentence, restored.  The Applicant’s expiration of active obligated service (EAOS) occurred on 910127.  Because of the Applicant’s EAOS and the Command’s dismissal of court-martial proceedings, the Applicant’s discharge should have been type warranted by service record and the only appropriate Narrative Reason for Separation can be EAOS.  As such, the NDRB, by a vote of 3 to 2, determined that the Applicant’s discharge should be equitably characterized as under honorable conditions (general) and by unanimous vote, that the Narrative Reason for Separation should be EAOS.

When the service of a member of the U.S. Navy has been honest and faithful, it is appropriate to characterize that service as honorable.  An under honorable conditions (general) discharge is warranted when significant negative aspects of a member's conduct or performance of duty outweigh the positive aspects of the member's military record.  The Applicant’s service was marred by a prior Special Court-Martial conviction for a violation of Articles 112a of the UCMJ, wrongful use of a controlled substance, cocaine.  The Applicant’s conduct, which forms the primary basis for determining the character of his service, reflects his willful failure to meet the requirements of his contract with the U.S. Navy and falls far short of that required for an honorable discharge.  Therefore, relief 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, however, 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 should 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.  As of this time, the Applicant has not provided sufficient documentation for the Board to consider an upgrade to an honorable discharge.  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 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), effective 15 Aug 1991 until 04 Mar 1993, Article 3620150, SEPARATION OF ENLISTED PERSONNEL BY REASON OF EXPIRATION OF ENLISTMENT, FULFILLMENT OF SERVICE OBLIGATION, OR EXPIRATION OF TOUR OF ACTIVE SERVICE.

B.  Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 2, AUTHORITY/POLICY FOR DEPARTMENTAL DISCHARGE REVIEW.  

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 "afls14.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.