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

FOR OFFICIAL USE ONLY

 ex-BMSR, USN
Docket No. ND06-00284

Applicant’s Request

The application for discharge review was received on 20051122.  The Applicant requests the Discharge Characterization of Service received at the time of discharge be changed to honorable.  The Applicant requests a documentary record discharge review.  The Applicant did not designate a representative on the DD Form 293.  

Decision

A documentary discharge review was conducted in Washington, D.C. on 20061019.  After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, no impropriety or inequity 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 not change.  The discharge shall remain as a bad conduct discharge by reason of court-martial.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application and attached letter:

“An upgade is requested, so that I may continue being an outstanding citizen and serving my country with the Dept of Defense.”

“Dear DRB (or) BCMR:  This is the following reasons I believe my discharge should be upgraded to honorable.  I serve as an active duty in the desert storm war.  I have been a good citizen for over 10 years.  I am currently working in “Iraq” helping our troops defeat this enemy.  I’m on my 2^nd year putting on armor on all the Vehicles protecting the troops.  I am a cilvan contractor working for the dept of defense, I feel like I’m still serving my country, I just hope my country can help me.  I’m stationed at the Balad army Base outside of Baghdad,  here are a copy of my orders.  Please give me a second chance.  “I have a BCD, please upgrade me to a Honorable Discharge.”

Sincerely (Phone Number)

[signed]  R_ W_ (Applicant)”

“Dear DRB [or] BCMR:  The following issues are the reasons I believe my discharge should be upgraded to honorable.  If you disagree, please explain in detail why you disagree.  The presumption of regularity that might normally permit you to assume that the service acted correctly in characterizing my service as less then honorable does not apply to my case because of the evidence I am submitting.  

Clemency is warranted because it is an injustice for me to continue to suffer the adverse consequences of a bad discharge.
My average conduct and efficiency ratings/behavior and proficiency marks were good [or pretty good]
I received awards and decorations
I received letters of recommendation
I had combat service
I was so close to finishing my tour that it was unfair to give me a bad discharge 
I had a prior Honorable Discharge
I have been a good citizen since discharge”

Documentation

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

Letter from T_ R. O_, Procuring Contracting Officer, HQ Army Field Support Command, undated  (2 pages)
Applicant’s DD Form 214  (2 copies)
Black Belt Certificate, World Wing Chun Kung FU Association, undated
Applicant’s DOD Contractor ID, expiration date of December 11, 2005
Memorandum from U.S. Army Field Support Command, Department of the Army Headquarters, dtd April 20, 2005
Applicant’s K_ B_ & R_ driver’s license, expiration date of October 23, 2005
Applicant’s Social Security Card
Applicant’s Florida driver’s license
Applicant’s Army Contractor ID, expiration date of December 3, 2006
Memorandum from Headquarters, U. S. Army Field Support Command, Department of the Army, dtd December 2, 2004  (2 copies)
Applicant’s Resume  (2 pages)
Request Pertaining to Military Records, dtd January 26, 2006
Ltr from Florida Department of Law Enforcement, dtd January 29, 2006
NPRC Service Request, created February 03, 2006
NPRC letter, dtd February 8, 2006

PART II - SUMMARY OF SERVICE

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

	Inactive:  USNR (DEP)	19880422 – 19880426		COG
	Active:    None

Period of Service Under Review:

Date of Enlistment:  19880427		Date of Discharge:  19941021

Length of Service (years, months, days):

	Active:    06  05  25  (Does not exclude lost time)
	Inactive:  None

Time Lost During This Period (days):

	Unauthorized absence:  78 days
	Confinement:		  99 days

Age at Entry:  23

Years Contracted:  4 (25-month extension)

Education Level:  15				AFQT:  33

Highest Rate:  BM3

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.8 (3)		Behavior:  3.6 (3)		OTA:  3.7

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214):  Good Conduct Medal, Navy Unit Commendation, Combat Action Ribbon, Kuwait Liberation Medal, National Defense Service Medal, Southwest Asia Service Medal, Sea Service Deployment Ribbon

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

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

Chronological Listing of Significant Service Events: 

880428:	Applicant briefed on Navy's policy of drug and alcohol abuse.
 
880527:	Drug and Alcohol Abuse Report:  On 880429, Applicant was found to have abused marijuana at an unknown location, based on a service directed urinalysis test.  Commanding Officer recommends retention and Level I Treatment including NADSAP.  The disciplinary action taken was a written warning.  Commanding Officer’s Comments:  MBR has potential for Naval service.  Positive entry level urinalysis for THC.  Issued Page 13.  Will undergo mandatory urinalysis once a month during pre-accession training.

880711:	Applicant to unauthorized absence at 1200 on 880711.

880811:	Applicant declared a deserter on 880811 having been an unauthorized absentee since 1200, 880711 from NAVHSPCORPSCOL Great Lakes, IL.

880927:	Applicant surrendered to military authorities on at 1228 on 880927 at NAVHOSPCORPSCOL (78 Days UA).

881005:	NJP for violation of UCMJ, Article 86:  Without authority absent himself from his unit.
Award:  Forfeiture of $335.00 pay per month for 1 month, reduction to E-1.  No indication of appeal in the record.

930216:	Special Court-Martial.
	Charge:  Violation of the UCMJ, Article 112a
Specification 1:  In that Boatswain’s Mate Third Class R_ L. W_ (Applicant), U.S. Navy, Shore Intermediate Maintenance Activity, Mayport, Florida, on active duty, did in or about Jacksonville, Florida, on or about 921021, wrongfully distribute 1/4 ounce of cocaine.  Plea: Not Guilty.
Specification 2:  In that Boatswain’s Mate Third Class R_ L. W_ (Applicant), U.S. Navy, Shore Intermediate Maintenance Activity, Mayport, Florida, on active duty, did, in or about Jacksonville, Florida, on or about 921023, wrongfully distribute 1/4 ounce of cocaine.  Plea: Guilty     
Specification 3:  In that Boatswain’s Mate Third Class R_ L. W_ (Applicant), U.S. Navy, Shore Intermediate Maintenance Activity, Mayport, Florida, on active duty, did in or about Jacksonville, Florida, on or about 921027, wrongfully distribute 1/4 ounces of cocaine.
Plea: Guilty.
Specification 4:  In that Boatswain’s Mate Third Class R_ L. W_ (Applicant), U.S. Navy, Shore Intermediate Maintenance Activity, Mayport, Florida, on active duty, did, in or about Jacksonville, Florida, on or about 921021, wrongfully possess 1/4 ounce of cocaine.
Plea: Not Guilty.
Specification 5:  In that Boatswain’s Mate Third Class R_ L. W_ (Applicant), U.S. Navy, Shore Intermediate Maintenance Activity, Mayport, Florida, on active duty, did, in or about Jacksonville, Florida, on or about 921023, wrongfully possess 1/4 ounce of cocaine.
Plea: Not Guilty.
Specification 6:  In that Boatswain’s Mate Third Class R_ L. W_ (Applicant), U.S. Navy, Shore Intermediate Maintenance Activity, Mayport, Florida, on active duty, did in or about Jacksonville, Florida, on or about 921027, wrongfully possess 1/4 ounce of cocaine.
Plea: Not Guilty.
Specification 7:  In that Boatswain’s Mate Third Class R_ L. W_ (Applicant), U.S. Navy, Shore Intermediate Maintenance Activity, Mayport, Florida, on active duty, did, in or about Jacksonville, Florida, on or about 921027, wrongfully use cocaine.
Plea: Guilty.
	Finding: to Charge I and the specifications 2, 3, and 7 thereunder, guilty.
	Sentence:  Forfeiture of $500.00 pay per month for 5 months, reduction to E-1 and to be discharged from the naval service with a bad conduct discharge. Five months of confinement.
	CA action 930524:  Sentence approved and except for that portion of the sentence extending to a bad conduct discharge, will be executed.

930216:	To confinement.

930526:	From confinement, restored to full duty. 

931022:	NMCCMR affirmed findings of guilty and sentence. 

930716:	Joined for record purposes only to NAVAPLVACT.

940630:	United States Court of Military Appeals affirmed decision of NMCCR.  

940928:	Appellate review complete.

941021:	SSPCMO:  Article 71c, UCMJ, having been complied with, Bad Conduct discharge ordered executed.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19941021 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).  

In response to the Applicant’s issues, 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.  The Applicant’s service is marred by a 78-day period of unauthorized absence, the commission of a serious offense.  Subsequently, the Applicant pleaded guilty at special court-martial to violations of Article 112a for wrongful use of a controlled substance and wrongful distribution of a controlled substance.  The Applicant’s violations of Article 112a of the UCMJ are also serious offenses.  Serious offenses are punishable by punitive discharge if awarded upon conviction as part of the sentence upon conviction at a special or general court-martial.  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 Applicant remains eligible for a personal appearance hearing, provided an application is received, at the NDRB, within 15 years from the date of discharge.  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), Change 5, effective 
05 Mar 93 until 02 Oct 96, 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 86, unauthorized absence for more than 30 days, Article 112a, wrongful use of a controlled substance or Article 112a, wrongful distribution of a controlled substance.

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.

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 “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