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NAVY | DRB | 1999_Navy | ND99-00476
Original file (ND99-00476.rtf) Auto-classification: Denied


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

ex-ATAR, USN
Docket No. ND99-00476

Applicant’s Request
The application for discharge review, received 990218, requested that the characterization of service on the discharge be changed to honorable. The applicant requested a documentary record discharge review. The applicant did not list any representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 000110. 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. The Board’s vote was unanimous that the character of the discharge shall not change. The discharge shall remain: BAD CONDUCT/Convicted by special court martial, authority: NAVMILPERSMAN, Article 3640420.




PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues
1.       I began drinking to better serve military. In one particular instance where in army in germany our section would have monthly meetings alcohol was given to us while we aired our greivances to officers. Because I was quiet and not well spoken it was strongly suggested to have a few beers so I would talk more and get things off my chest. I was very impressionable and ready agreed and eagerly awaited such monthly meeting. I really believed that drinking was just a part of military life and would not affect my character of service as I always put country and service first. Drinking started out as a toll, it was not for recreational use.
2.       My cocaine usage happened because of my addiction to alcohol. I simply became weak and fell for it. I never, not even once, had any intention to go out and get high. I can't explain why it happened. I was not aware of the intentions of the people I served with. It seemed that those people knew and condoned my alcohol usage. I received some unfair influence and probably if I had known what was happening, I might have been able to ward off such evil influence. In civilian life I am always striving to do better and request my character of service be upgraded so I can continue to strive to do better.
 Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
Copy of DD Form 214

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: USA                        770627 - 840201  HON
         Inactive: USNR (DEP)     850708 - 850809  COG

 Period of Service Under Review :
Date of Enlistment: 850810               Date of Discharge: 910205

 Length of Service (years, months, days):

         Active: 05 04 20
         Inactive: None

 Age at Entry: 27                          Years Contracted: 4 (24 months extension)

 Education Level: 12                        AFQT: 94

 Highest Rate: AT1

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 4.00 (2)    Behavior: 4.00 (2)                OTA: 3.80

 Military Decorations: None

 Unit/Campaign/Service Awards: SSDR, BATTLE"E"RIBBON, AFEM, MUC, OSR, AGCM, Rifle Marksman Badge

Days of Unauthorized Absence: 13

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 :

890312:  NJP for violation of UCMJ, Article 112a: Use of cocaine on or about 890216.
         Award: Forfeiture of $703.00 per month for 2 months, restriction for 60 days, reduction to E-5. No indication of appeal in the record.
890313:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse as evidenced by the wrongful use of cocaine.

890313:  Applicant advised of his rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before and Administrative Discharge Board.

890322:  DAAR indicates applicant consented to the use of cocaine, found dependent by medical officer.

890512:  An Administrative Discharge Board, based upon a preponderance of the evidence and by unanimous vote, found that the applicant had committed misconduct due to drug abuse, that the misconduct warranted separation, and recommended discharge under other than honorable conditions. The board recommended by a vote of 2 to 1 that the discharge should be suspended for 12 months.

890616:  Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse.

890703:  CNMPC directed the applicant's 12 months probationary discharge under other than honorable conditions by reason of misconduct due to drug abuse.

890707:  Retention Warning: You are being placed into a probationary status for a period of twelve (12) months, notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

900330:  To UA

900410:  From UA, [10days/S]

900416:  Special Court Martial [trial date 900416]
         Charge I: violation of the UCMJ, Article 86, (2) Specifications.
         Specification 1: Unauthorized absence 900202 – 900204, [2 days/A.]
         Specification 2: Unauthorized absence 900327 - 900328, [1day/S]. Charge II: violation of the UCMJ, Article 112a: Wrongful use of cocaine on 900204.
         Findings: to Charge I and specifications 1 and 2 thereunder, guilty, to Charge II and specification thereunder, guilty.
         Sentence: CHL for 1 month, forfeiture of $400 per month for 1 month, reduction to E-1, Bad Conduct discharge.
         CA 900525: Sentence approved and ordered executed, except for bad conduct discharge.
        
900416:  Joined the Naval Consolidated Brig, Miramar, California, for confinement.
900501:  Applicant waived clemency review.

 900510:  From confinement; to appellate leave.
901012:  NMCCMR: The findings of guilty and sentence, as approved on review, are affirmed.
910120:  COMA: Request for appeal denied.

 910205:  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 910205 with bad conduct due to convicted 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).

The Board found the applicant’s issues without basis with regard to the propriety and equity of the applicant’s discharge. The applicant submitted no evidence or mitigating circumstances indicating that the applicant was not responsible for his own misconduct. Relief denied.

 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 COURTMARTIAL

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 obtain a copy of DoD Directive 1332.28 by writing to:
                  DA Military Review Boards Agency
                  Management Information and Support Directorate
                  Armed Forces Reading Room
                  Washington, D.C. 20310-1809

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
                  Washington Navy Yard
                  720 Kennon Street SE Rm 309
                  Washington, D.C. 20374-5023     


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