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NAVY | DRB | 2001_Navy | ND01-00796
Original file (ND01-00796.rtf) Auto-classification: Denied


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


ex-FR, USN
Docket No. ND01-00796

Applicant’s Request
The application for discharge review, received 010522, requested that the characterization of service on the discharge be changed to honorable. The applicant requested a personal appearance hearing discharge review before a traveling panel closest to (left blank). The applicant designated the Veterans of Foreign Wars as the representative on the DD Form 293. In the acknowledgement letter to the applicant, he was inform that the Naval Discharge Review Board (NDRB) does not travel, all hearings are held in the Washington, DC area. The NDRB also advised that the board first conducts a documentary review prior to any personal appearance hearing.

Decision

A documentary discharge review was conducted in Washington, D.C. on 020619. 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

 Submitted by VFW:
1. The applicant post service has been commendable. He has been married for 10 years, have three children, he is involve with volunteer work in his community. He has been employed with the same company for the last seven years. His employer thinks very highly of him even to the point of elevating him to supervisory capacity. He has demonstrated that he is a changed man for the better. We refer this case to the Board for their careful and compassionate consideration and request the applicant's discharge be reviewed and he be considered for a Clemency Discharge.
Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
Applicant's letter to the Board dtd 5-15-01
Copy of DD Form 214
 Character Reference letter from W_ C_, dtd 5-15-01
Character Reference letter from co-worker, G_ R. H_, dtd 5-15-01
 Letter of Employment/Character Reference from S_ R. M_, President, Belt Connection, Inc., dtd June 15, 2001

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
         Inactive: USNR (DEP)     851129 - 851209  COG
          USMCR(J)                 850522 - 851107  ELS (due to drug abuse)
Period of Service Under Review :
Date of Enlistment: 851210               Date of Discharge: 901126
Length of Service (years, months, days):

          Active: 04 11 27 (Doesn't exclude lost/confinement time.)
          Inactive: None

 Age at Entry: 19                          Years Contracted: 4

Education Level: 12                        AFQT: 52

 Highest Rate: FN
Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.6 (3)     Behavior: 3.27 (3)                OTA: 3.53
Military Decorations: None

 Unit/Campaign/Service Awards: Navy "E" Award, SSDR
Days of Unauthorized Absence: 43

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 :

860313:  NJP for violation of UCMJ, Article 92: failure to obey other lawful written order on 86MAR08, to wit: wrongfully calling black people "nigger" or words to that effect;
violation of UCMJ Article 108 (2 Specs): Spec 1 - damaging, destroying or losing military property on 86MAR08, to wit: willfully damage by breaking a glass window, property of the United States. Spec 2 - damaging, destroying or losing military property, on 86MAR08, to wit: damage by breaking a glass window of a government vehicle, property of the United States;
violation of UCMJ Article 128: assault consummated by a battery on 86MAR08, to wit: unlawfully strike OS1 L_ in shoulder with fist; violation of UCMJ, Article 134: communicating threat on 86MAR08, to wit: wrongfully communicate to LT G_ a threat to injure him.
         Award: Forfeiture of $295 per month for 2 months, restriction and extra duty for 30 days. No indication of appeal in the record.
860313:  Retention Warning: Advised of deficiency (fail to obey order, destroying government property (2 specs) assault, battery and communicating threat), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

870108:  NJP for violation of UCMJ, Article 134: wrongfully possess another's military ID card on 25OCT86.
         Award: Forfeiture of $300 per month for 2 months ($150.00 pay per month for two months suspended 6 months), restriction and extra duty for 30 days, reduction to E-1 (suspended 6 months). No indication of appeal in the record.
870113:  Retention Warning: Advised of deficiency (wrongful use of another's military ID Card), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

870401:  Unauthorized absence from USS NEW JERSEY (BB-62) at Long Beach, CA as of 0715. Intentions unknown.
870423:  Surrendered onboard USS NEW JERSEY at 1200 (22 days).
870514:  NJP for violation of UCMJ, Article 86: unauthorized absence from 0715 1APR87 - 1200, 22APR87.
         Award: Forfeiture of $200 per month for 2 months (suspended for 6 months), restriction and extra duty for 30 days. No indication of appeal in the record.
870723:  NJP for violation of UCMJ, Article 134: drunk and disorderly conduct on board Naval Station Long Beach on 2JUL87;
 violation of UCMJ Article 117: wrongful use of reproachful words towards a Long Beach Military Police woman on 2 JUL87.
         Award: Forfeiture of $383 pay per month for 2 months, restriction and extra duty for 45 days. No indication of appeal in the record.
870819:  Retention Warning: Advised of deficiency (drunk and disorderly), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

890119:  NJP for violation of UCMJ, Article 112A (2 Specs): Spec 1 - wrongful use of a controlled substance, methamphetamine, at NavSta, Long Beach, CA on or about Aug 88. Spec 2 - wrongful use of a controlled substance, cocaine, at NavSta, Long Beach, CA on or about Aug 88.
         Award: Forfeiture of $370 pay per month for 2 months, restriction and extra duty for 45 days, reduction to E-2. No indication of appeal in the record.
890131:  DAAR: Random urinalysis, positive for cocaine abuse, date of incident 06JAN89. Below average both professionally and militarily, no potential for future naval service.

890615:  Unauthorized absence from Naval Station, Long Beach, CA at 0730, while TAD to Naval Hospital, Long Beach, CA. Intentions unknown.
890607:  Medical Board Proceedings cancelled due to disciplinary actions.
890706:  Surrendered to military authorities at 1130 at Customer Service Desk, Houston, TX (satellite office of PSD Corpus Christi/Houston, TX.)
890707:  Applicant transferred under technical arrest orders to Naval Station, Long Beach, CA. Retained on onboard for disciplinary action/ disposition (21 days).
890830:  Special Court Martial
         Charge I: violation of the UCMJ, Article 86, 2 Specifications.
          Specification 1: Unauthorized absence 89JUN15 – 89JUL06, [21 days/S.]
          Specification 2: Unauthorized absence 89JUL31 - 98AUG01
          Charge II: violation of the UCMJ, Article 112a 3 Specifications.
          Specification 1: At or near Naval Hospital Long Beach wrongfully use a controlled substance, to wit: crystal methamphetamine.
         Specification 2: At or near Naval Hospital Long Beach wrongfully distribute ¼ gram of crystal methamphetamine.
          Specification 3: At or near Naval Hospital Long Beach wrongfully used a controlled substance, to wit: cocaine.
          Charge III: violation of the UCMJ, Article 121: On or about 14JUN89, did steal U.S. Currency, of a value of about $50.00.
         Charge IV: violation of the UCMJ, Article 134: having been restricted to limits of Naval Station, Long Beach, on or about 31 July 89, break said restriction.
          Findings: to Charge I and specifications 1 and 2 thereunder, guilty.
          To Charge II and specifications 1, 2 and 3 thereunder, guilty with substituted wording.
          To Charge III and specification, guilty with substituted wording.
         To charge IV and specification, not guilty.
          Sentence: Confined for 3 months, forfeiture of $466.00 pay per month for 3 months, reduction to E-1, Bad Conduct discharge.
         CA 891030: Sentence approved and ordered executed, except for bad conduct discharge.
        
890830:  To confinement.
890914:  From confinement; to appellate leave.
900330:  NMCCMR: The findings of guilty and sentence, as approved on review, are affirmed. The court-martial order incorrectly reflects that appellant plead guilty and was found guilty of Specification 2 of Charge I. It is also inaccurate as to the quantum of confinement and forfeitures adjudged. A corrected court-martial order is directed that accurately recounts that as to Specification 2 of Charge I, appellant plead not guilty and was found not guilty; the order shall also indicate that the sentences adjudged included confinement for four months, forfeitures of $466.00 per month for four months, reduction to pay grade E-1, and a bad-conduct discharge.
900410:  NC&PB clemency not granted; restoration denied.

 901126:  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 in absentia on 901126 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).
Issue 1. The applicant’s discharge characterization accurately reflects his service to his country. 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 relief, based on post-service conduct. The applicant did not provide sufficient documentation to warrant an upgrade to his discharge. 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. 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 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 2, AUTHORITY/POLICY FOR DEPARTMENTAL DISCHARGE REVIEW.

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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