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NAVY | DRB | 2000_Navy | ND00-00405
Original file (ND00-00405.rtf) Auto-classification: Denied


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

ex-GSMFR, USN
Docket No. ND00-00405

Applicant’s Request
The application for discharge review, received 000214, requested that the characterization of service on the discharge be changed to general/under honorable conditions. The applicant requested a documentary record discharge review. The applicant listed the Department of Veteran's Affair, Oakland, CA, as his representative on the DD Form 293. Subsequent to the applicant's record review, the Department of Veteran's Affair withdrew as his representative.

Decision

A documentary discharge review was conducted in Washington, D.C. on 000907       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/COURT MARTIAL CONVICTION, authority: NAVMILPERSMAN, Article 3640420.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues (verbatim)

1. My discharge was unequitable on account it was based on a single, isolated incident within 68 months of service.

2. I concede that during my service, I was subject to three (3) NJP's on account of alcohol-related incidents. Alcohol was not a factor in my discharge, or Special Court Martial.

3. The numerous awards, citations and decorations during the course of my service proves that I was serving with honor.

4. I cooperated immediately and fully when initial discovery of my offense was made. I concede, that on the advice of my appointed attorney, that I did cease to be as cooperative.

5. My voluntary statement shows that making blasting caps was a part of a hobby that included model rocketry.

6. The prosecutions liberal applications of laws, including those not applicable; as exemplified in Charge 01, Spec. 03- Sec.842 (a) (1) of Title 18 of the US Code, shows unfairness on the part of prosecution as well as sloppiness of my court-appointed representative.

 7. The Investigating Officer's Report bolster's my defense in the following ways:

 Charge I and Specification Thereunder

He is not convinced that the black powder is "Highly Explosive" as claimed by the prosecution's witness.

 Specification 1

The Investigating Officer states the Charge is "...somewhat awkward"
Specification 3
The Investigating Officer states the charge is "...is more problematic." He recommends removal of this Specification.

 Specification 5

The Investigating Officer states the charge is "...somewhat more problematic than Spec. 4" He states that 18 U S C contains no regulations in regard to the prosecution's claim that I mis-stored the material.

 Multiplicity

The Investigating Officer states "...I believe this case is somewhat if overcharged" given the facts."

 Conclusion

The investigating officer states "'Forum for the disposition of this matter is a close call." Also, he went on to say "...I am convinced that he had no malicious intent, that pyrotechnics is merely his hobby and that he was not purposely evading any federal law."

I believe that quote is strongly in support of my contension, and that it came from a commissioned officer within my branch of service lends great credence.

8. Finally, I concede that it was indeed stupid of me to cause this offense, and I agree to a fitting punishment. However, given that I did not put the items in the engineroom, that the prosecution was in an apparent hurry to convict, that the timing of this event in light of Oklahoma City, and that my appointed attorney was-inefficient in his duties to examine the facts as I have, all point to an inflated, isolated incident without basis for a Bad Conduct Discharge being awarded.


9. The Department of Veteran's Affairs has seen fit to award me an Other Than Honorable upgrade for the purpose of benefits consideration only. I believe their positive take on my situation lends greater credence to my case.

Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
Statement from Department Veterans' Affairs
Investigation action taken by NCIS
Statement from applicant dated January 26, 2000
Portion of voluntary statement (page 3 of 4)
Summary of charges
Investigating Officer's report
Special Court Martial and direct and cross examination, with comments from applicant
Black Powder Guide
Blasters' Handbook
Unacknowledged evaluation
Oklahoma City tragedy and comparison, with comments
Military evaluations for enlistment period; inclusive
Copy of counseling dated 13Apr
Training certificate dated July 19, 1995 while confined
Other training records during period of enlistment
Letter of commendations dated 4Jan95 to 2Feb95, 15Jun93 to 15Dec93, 22Apr92 to 22Oct92, Apr91 to Aug91
Distinguished military graduate 27Jul90
Combined Federal Campaign Silver Award
Letters of recommendation Jul95 to 5Aug99
Character references 22Sep99 and one undated
Copy of certificate of eligibility for loan guaranty benefits from Department of Veterans Affairs dated June 8, 2000

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
         Inactive: USNR (DEP)     890803 - 890904  COG

 Period of Service Under Review :
Date of Enlistment: 890905               Date of Discharge: 960108

 Length of Service (years, months, days):

         Active: 06 04 04
         Inactive: None

 Age at Entry: 18                          Years Contracted: 4 (24 months extension)

 Education Level: 12                        AFQT: 68

 Highest Rate: GSM2

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.66 (7)    Behavior: 3.71 (7)                OTA: 3.83

 Military Decorations: None

 Unit/Campaign/Service Awards: NDSM, MUC, SASM (2), SSDR (2), AFEM

 Days of Unauthorized Absence: None

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 :

900130:  NJP for violation of UCMJ, Article 92 (2 specs): Failed to obey a lawful general order (1) Consuming alcohol while in a duty status on 7Jan90, (2) Possessing an alcoholic beverage in BEQ 837 on 8Jan90, violation of UCMJ Article 134: Consume alcoholic beverages in violation of Illinois revised statutes, while under the age of 21 years old on 8Jan90.
         Award: Forfeiture of $150 per month for 1 month, restriction and extra duty for 14 days, reduction to GSMFR. Reduction suspended for 6 months. No indication of appeal in the record.
920924:  NJP for violation of UCMJ, Article 134: Disorderly conduct.
         Award: Forfeiture of $512 per month for 2 months, restriction and extra duty for 45 days. No indication of appeal in the record.
950504:  Applicant to pretrial restraint.

950726:  Special Court Martial
         Charge I: violation of the UCMJ, Article 92.
         Specification: Violation of a lawful general regulation Apr95 to 4May95, to wit: wrongfully possessing five dangerous devices on board USS INGRAHAM Apr95-4May95.
         Charge II: violation of the UCMJ, Article 134:
         Specification 1: Wrongfully and knowingly possessing firearms Apr95-4May95, to wit: five improvised explosive devices composed of explosive powder, trigger devices and detonators (destructive devices).
         Specification 2: Wrongfully manufacturing explosive materials, Apr95 to 4May95, to wit: detonators.
         Findings: to Charge I and specifications 1 and 2 thereunder, guilty.
         Sentence: Confined for 45 days, reduction to GSMFR, Bad Conduct discharge.
         CA 951124: Sentence approved and ordered executed, except for bad conduct discharge.
         SA: see SSPCMO.
950808:  Applicant waived rights to appellate review.
951229:  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 960108 with a bad conduct due to court martial conviction (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).

In response to applicant’s issues 1-9, the Board found all of the issues to be without merit. Relevant and material facts stated in a court-martial specification are presumed by the NDRB to be established facts. With respect to a discharge or dismissal adjudged by a court-martial case tried under the Uniform Code of Military Justice, the action of the NDRB extends only to a change in the discharge or dismissal for purpose of clemency (B, art IV). Outstanding post-service conduct, to the extent that such matters provide a basis for a more thorough understanding of the applicant’s performance and conduct during the period of service under review, must be considered. Post-service factors include, but are not limited to, the following: evidence of continuing educational pursuits (transcripts, diplomas, degrees, vocational-technical certificates), a verifiable employment record (Letter of Recommendation from boss), documentation of community service (letter from the activity/community group), certification of non-involvement with civil authorities (police records check) and proof of his not using drugs (detoxification certificate, AA meeting attendance or letter documenting participation in the program) in order for consideration for clemency based on post-service conduct. At this time, the applicant has provided only a few character references as documentation of good character and conduct. Therefore, no relief will be granted. The applicant is encouraged to continue with his pursuits and is reminded that he is eligible for a personal appearance hearing provided the application is received within 15-years from the date of discharge. Representation at a personal appearance hearing is highly recommended.

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 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 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 Rm309
                  Washington Navy Yard DC 20374-5023      


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