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NAVY | DRB | 2000_Navy | ND00-00530
Original file (ND00-00530.rtf) Auto-classification: Denied


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

ex-MSSR, USN
Docket No. ND00-00530

Applicant’s Request
The application for discharge review, received 000320, 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 001005. 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 three to two 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 (verbatim)

1. My discharge was inequitable because it was based on one isolated incident in 26 months of service with no other adverse action.

2. I would like my discharge upgraded to honorable. Reference: Issue 2 use cover letter, Page 1, Paragraphs 1 thru 6.

3. I am clean and sober.
Reference: Issued 3: use cover letter, page 1, paragraph 2 and 5.
Use Drug Bund, page 1.
Use letter from Rev. D_ B_, page 1, para 1 and 2.

 Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
Copy of DD Form 214
LabCorp drug test dated February 10, 2000
Character reference from Reverend dated February 12, 2000
Character reference from reverend dated February 2, 2000
Letter from applicant dated March 15, 2000
Copy of applicant's performance review dated April 18, 2000
Copy of applicant's performance review dated November 12, 1998
Copy of applicant's performance review dated June 21, 1996
Character reference dated April 18, 2000
Character reference dated April 25, 2000
Character reference dated May 1, 2000
Job/character reference dated May 15, 2000
Character reference dated June 1, 2000
Copy of applicant's resume
Copy of police record check dated July 12, 2000
Copy of police record check dated July 13, 2000
Character reference dated June 1, 2000
Copy of picture of applicant
College transcript dated August 14, 2000

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
         Inactive: USNR (DEP)     870728 - 880606  COG

 Period of Service Under Review :
Date of Enlistment: 880607               Date of Discharge: 900823

 Length of Service (years, months, days):

         Active: 02 02 17
         Inactive: None

 Age at Entry: 20                          Years Contracted: 4

 Education Level: 12                        AFQT: 65

 Highest Rate: MSSA

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.50 (2)    Behavior: 2.30 (2)                OTA: 3.50

 Military Decorations: None

 Unit/Campaign/Service Awards: Letter of Appreciation

 Days of Unauthorized Absence: None

 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 :

890720:  NJP for violation of UCMJ, Article 112A: Wrongful use a controlled substance, to wit: marijuana on 20Jun89.
         Award: Forfeiture of $100 per month for 2 months, reduction to MSSR. No indication of appeal in the record.
891106:  Special Court-Martial
         Charge I: violation of the UCMJ, Article 112A:
         Specification: Use of marijuana on 9Aug89.
         Findings: to Charge I and specification thereunder, guilty.
         Sentence: CHL for 30 days, Bad Conduct discharge.
         CA 891226: Sentence approved and ordered executed, except for bad conduct discharge.
         SA: see SSPCMO.

891118:  From confinement; to appellate leave.
900328:  NMCCMR: The findings of guilty and sentence, as approved on review, are affirmed.
900823:  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 900823 with a bad conduct discharge due to conviction 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).

In issue 1, the applicant stated that her “ discharge was inequitable because it was based on one isolated incident in 26 months of service with no other adverse action.” The Board found this to be incorrect. The applicant received non-judicial punishment for her use of marijuana on June 20, 1989 and then was sent to a Special Court-Martial for her use of marijuana on August 9, 1989. No relief will be granted concerning this issue.

In response to applicant’s issues 2 and 3, 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, can be considered. In determining whether a case merits a change based on post-service conduct, the NDRB considers the length of time since discharge, the applicant's record of community service, employment, conduct, educational achievements, and family relationships. In reviewing the applicant’s post service, the Board was very impressed with the efforts she has begun to make in attempting to recoup her reputation which has been sullied by her misconduct in the Navy. The applicant provided sufficient documentation concerning a drug free lifestyle, a clear police record and a verifiable employment record. However, the applicant’s efforts need to be more encompassing than those provided. Documentation of community service and more evidence of continuing educational pursuits are necessary for consideration in changing a discharge, especially a bad conduct discharge. Therefore, relief will not be granted at this time. The applicant is reminded that she remains 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 recommended. The applicant is highly encouraged to continue her pursuits, remain drug-free, and apply for a personal appearance hearing prior to 23 August 2005.

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 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      


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