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NAVY | DRB | 2001_Navy | ND01-00565
Original file (ND01-00565.rtf) Auto-classification: Denied


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


ex-HTFR, USN
Docket No. ND01-00565

Applicant’s Request
The application for discharge review, received 010327, 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 did not list any representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 010928. 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 5815-010 (formerly 3640420).

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

 1. Can you take in consideration the special request chit that was given to me, signed by my superiors for great work for the days I was considered U/A.

2. I was off restriction, handed my ID by MA1 G_____, which sayed I was U/A the day he said I was off restriction.

3. Can you take in consideration the fact that my child K___ A____, 2 yrs old at the time, went through kidney surgery as my Superiors, Chief G____, knew of the day being U/A.

4. Can you take in consideration 1/4 of my ship crew wrote good character witness statements including my Senior CWO2 B___ letter of my character and him wanting me back.

5. Can you take in consideration of the ships statistics that year for enlisted men and women getting involved with drug use and I being the first to be made a example of with a special court martial and the captains talk on our ship tv that anyone caught will be like me.

6. Can you take in consideration that I tried to receive help and treatment from the DAPA and two chapelins onboard ship. There response (one chapel) was that he's a black man in the man's service-if he can do it why can't I.

7. Finally, I would like a general discharge so I may join the reserves and continue a honorable service.

8. I have received treatment and ready to come back home in the navy.

Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
Copy of DD Form 214
Name Change Documents (2pgs)

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: USN               NONE
         Inactive: USNR (DEP)     951019 - 951226  COG

 Period of Service Under Review :
Date of Enlistment: 951227               Date of Discharge: 990819

 Length of Service (years, months, days):

         Active: 02 04 05
         Inactive: None

 Age at Entry: 19                          Years Contracted: 4

Education Level: 10                        AFQT: 32

 Highest Rate: HTFN

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.00 (2)    Behavior: 3.00 (2)                OTA: 3.00 (5.0 evals)

 Military Decorations: None

 Unit/Campaign/Service Awards: None

Days of Unauthorized Absence: 4

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

BAD CONDUCT/Convicted by special court martial, authority: NAVMILPERSMAN, Article 5815-010 (formerly 3640420).

 Chronological Listing of Significant Service Events :

980209:  NJP for violation of UCMJ, Article 86: (2 Specifications), Spec 1: UA from USS MCKEE, from on or about 0730, 980126, until on or about 1445, 980126; Spec 2: UA from DET ALPHA, from on or about 0730, 980128, until on or about 0925, 980128, violation of UCMJ Article 87: Missed the movement of the USS MCKEE, on or about 980126, violation of UCMJ Article 111: Drunken driving at or near San Diego, CA, on or about 980126; violation of UCMJ Article 134: Incapacitated for duty on or about 980128..
         Award: Forfeiture of $450.00 pay per month for 2 months (suspended for 6 months), restriction and extra duty for 45 days (suspend 30 days for 6 months), reduction to E-2 (suspended for 6 months). No indication of appeal in the record.

980224:  Punishment of reduction in rate to E-2 and forfeiture of $450.00 for 2 months awarded at CO's NJP of 980206 vacated due to continued misconduct.

980312:  Civil conviction at San Diego, California Municipal Court for driving under the influence of alcohol, drug, or combination of both.
         Sentence: Fine $1,100.00, confinement for 180 days (suspended), five (5) years probation, attend and complete MADD Program, complete public service program.

980505:  Special Court Martial [trial dates 980504 – 980505]
         Charge I: violation of the UCMJ, Article 86: AWOL (2400,980219 until 0715, 980223; Charge II: violation of the UCMJ, Article 112a: Wrongful use of a controlled substance on 980223 (cocaine).
         Findings: to Charge I and specification thereunder, guilty. To Charge II and specification thereunder, guilty.
         Sentence: CHL for 3 months, forfeiture of $450.00 per month for 3 months, reduction to E-1, Bad Conduct discharge.
         CA 981022: Sentence approved and ordered executed, except for bad conduct discharge.
        
980505:  Joined the Naval Brig Pearl Harbor, Hawaii, for confinement.

980720:  From confinement; to appellate leave.
990514:  NMCCCA: The findings of guilty and sentence, as approved on review,
         are affirmed.
990819:  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 990819 with bad conduct due to convicted by a 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 response to the applicant’s issues one through six: 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. The applicant's case was considered under the pertinent standards of equity to determine if any factors in this particular case merited clemency. The NDRB found the applicant’s service record devoid of any mitigating or extenuating factors sufficient to offset the seriousness of the offenses for which the discharge was awarded. The applicant failed to provide documentary evidence to demonstrate his sobriety, positive community service, employment history, and clean police record since discharge. Relief based on clemency is not warranted.

The applicant’s seventh issue requests the Board change the discharge so that the applicant can return to the Naval Reserves. The NDRB is under no obligation to upgrade an individual’s discharge for the purpose of allowing him to reenter an branch of the armed forces. The applicant is directed to consult his Navy Recruiter regarding future opportunities in the uniformed service. The discharge was proper and equitable. Relief is denied.

The applicant’s eighth issue states: “I have received treatment and ready to come back home in the navy.” The applicant failed to provide documentary evidence to support his sobriety and post service accomplishments. Without verifiable documentation of post service sobriety, employment, clean police record, and community service the Board will not grant relief.

The following is provided for the benefit of the applicant. Normally, to permit relief, an error or injustice must have existed during the period of enlistment in question. No such error or injustice occurred during the applicant’s enlistment. Additionally, there is no law, or regulation, which provides that an unfavorable discharge may be upgraded based solely on the passage of time, or good conduct in civilian life, subsequent to leaving the service. However, the NDRB is authorized to consider outstanding post-service factors in the recharacterization of a discharge, 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. Verifiable proof of any post-service accomplishments must be provided in order for the applicant to claim post-service conduct and behavior as a reason to upgrade a less than Honorable discharge. Evidence of continuing educational pursuits, an employment record, documentation of community service, certification of non-involvement with civil authorities and proof of his not using drugs, are examples of verifiable documents that should have been provided to receive consideration for clemency, based on post-service conduct. The applicant did not provide any of these documents. He is reminded that he remains eligible for a personal appearance hearing, provided an application is received, at the NDRB, within 15 years from the date of his discharge. The applicant can provide additional documentation to support any claims of post-service accomplishments at that time. Legal representation at a personal appearance hearing is highly recommended but not required.

Pertinent Regulation/Law (at time of discharge)

 A. The Naval Military Personnel Manual, (NAVPERS 15560C), Change 22, effective 15 Dec 98 to Present, Article 5815-010 (formerly 3640420), Executing a Dishonorable or Bad Conduct Discharge.

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 " afls10.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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