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Docket No. ND06-00487

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

FOR OFFICIAL USE ONLY

ex-BMSR, USN
Docket No. ND06-00487

Applicant’s Request

The application for discharge review was received on 20060214.  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 20061206.  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 characterization of the discharge shall not change.  The discharge shall remain as a bad conduct discharge by reason of court-martial conviction.

The NDRB did note an administrative error on the original DD Form 214.  Block 12c, Net Active Duty This Period, should read: “07 00 01.”  The Commander, Navy Personnel Command, Millington, TN, will be notified, recommending the DD Form 214 be corrected or reissued, as appropriate.

PART I - ISSUES AND DOCUMENTATION

Issues, as stated

Decisional Issues:  

Equity –  Post service
Equity – One isolated incident
Equity – Personal problems

Documentation

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

Letter from Applicant, dtd February 6, 2006
Criminal History Report, undated
Issues Listing
Reference ltr from J_ T_, L.C.S.W., Clinical Director, Sequoia Counseling Service, undated
Character Reference ltr from R_ S_, Supervisor Graphic INK, undated
Letter of Recommendation from C_ E. C_, PH.D, Pastor-Teacher, dtd October 1, 2005
Resume
Substance Abuse Classification License, State of Utah, Department of Commerce
Alcoholism and Drug Abuse Counselors Certificate, dtd December 1, 2000
Certificate of Completion for Alcohol and Drug Abuse Treatment Training program from University of Utah Graduate School of Social Work, dtd August 22, 2000
Applicant’s DD Form 214 (Service 2) (2 copies)
Excerpts from Service Record (5 pgs)
Confirmation of Discount Arrangement from Charter Canyon Financial Services Department, dtd July 1, 1999
Receipt from Charter Canyon Treatment Center, dtd June 9, 1999 

PART II - SUMMARY OF SERVICE

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

	Inactive:  USNR (DEP)	19870522 – 19871005	COG
	Active:    None

Period of Service Under Review:

Date of Enlistment:  19871006		Date of Discharge:  19941006

Length of Service (years, months, days):

	Active:    07  00  01  (Does not exclude lost time.)
	Inactive:  00  04  14

Time Lost During This Period (days):

	Unauthorized absence:  None
	Confinement:		  75 days

Age at Entry:  33

Years Contracted:  8 (36 months active)

Education Level:  15				AFQT:  74

Highest Rate:  BM3

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.3 (2) 		Behavior:  3.6 (2) 		OTA:  3.40 

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214):  National Defense Service Medal, Sea Service Deployment

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

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

Chronological Listing of Significant Service Events: 

870513:	Drug and Alcohol Abuse Statement of Understanding.

870516:	USN Alcohol and Drug Abuse Screening Certificate: Applicant acknowledged use of marijuana in the past, also having been convicted of a drug abuse offense.

900727:	Special Court Martial
	Charge I:  violation of the UCMJ, Article 92.
	Specification:  Violate a lawful general regulation by possessing drug abuse paraphernalia.  Plea: Not Guilty.  Findings: Guilty. 
	Charge II:  violation of UMCJ, Article 112a (3 specifications).
	Specification 1: About Aug 89, wrongfully posses amphetamines/methamphetamines.  Plea: Guilty.  Findings: Guilty.
	Specification 2: Between Aug 89 - Jan 90, wrongfully use amphetamines/methamphetamines.  Plea: Guilty.  Findings: Guilty
	Specification 3: 23 Mar 90, wrongfully possess some amount of marijuana. Plea: Not Guilty.  Findings: Guilty
	Sentence:  Confinement for 3 months, forfeiture of $350.00 pay per month for 3 months, reduction to E-2, Bad Conduct discharge.
	CA 901109:  The sentence is approved and except for that part of the sentence extending to a bad conduct discharge, will be executed.

900727:	Joined NAVCONBRIG MIRAMAR, for confinement.

901011:	From confinement, restored to full duty.  Processed for Appellate leave. 

921119:	NMCCMR:  The findings of guilty and sentence, as approved below, are affirmed.  

930708:	USCMA granted the Applicant’s petition for review.

940613:	USCMA affirmed the decision of the NMCCMR.

940912:	Appellate review complete.

941006:	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 19941006 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).  The Board presumed regularity in the conduct of governmental affairs (D).

In response to the Applicant’s issues, 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.  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.  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.

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 92 (violate a general regulation), 112a (use and possession 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.

D.  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 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 Instruction 1332.28, you may submit a complaint in accordance with Enclosure (5) of that Instruction.  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”.

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