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NAVY | DRB | 2002_Navy | ND02-00177
Original file (ND02-00177.rtf) Auto-classification: Denied


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


ex-AKAR, USN
Docket No. ND02-00177

Applicant’s Request
The application for discharge review, received 011211, 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 designate a representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 020715. 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, as submitted

 1. I was under pressure to take the Bad Conduct Discharge by my counsel.
2. My wife abandoned me what made me go U.A. and impaired my ability to serve.
3. My discharge was based on two offenses, but they were only minor offenses.

4.       The punishment I got at discharge was too harsh. It was much worse than most people got for the same offense.
5. My use of drugs impaired my ability to serve.
6. My record of promotion showed I was a good service member.

 7. I served in the Gulf War and received decorations.


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: None
          Inactive: USNR (DEP)     900822 - 901126  COG

 Period of Service Under Review :
Date of Enlistment: 901127               Date of Discharge: 930816

 Length of Service (years, months, days):
         Active: 02 08 20 (Doesn't exclude lost and confinement time.)
          Inactive: None
Age at Entry: 20                          Years Contracted: 4

Education Level: 12               AFQT: 53
Highest Rate: AKAA

 Final Enlisted Performance Evaluation Averages (number of marks):
Performance: NMF*        Behavior: NMF             OTA: NMF

 Military Decorations: None
Unit/Campaign/Service Awards: NDSM

 Days of Unauthorized Absence: 19

*No Marks Found in service record.
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 :
900822:  Counseled concerning the Navy's physical readiness program, notified of corrective actions and assistance available.
901221:  Retention Warning: Advised of deficiency (undisclosed pre-service marijuana abuse), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

910207:  Retention Warning: Advised of deficiency (fraudulent entry into naval service due to failure to disclose pre-service civil involvement - illegal possession of drugs, Dec 88. Charges dropped. Auto theft, Mar 89. Charges dropped). Notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

920420:  Unauthorized absences from HM-14. Intentions unknown.
920509:  Apprehended by civil authorities (NPD). Returned to military jurisdiction at 1034, 92MAY09. Custody turnover executed via Tidewater Area Shore Patrol (TASP) Norfolk, VA. Delivered onboard HELMINERON by TASP at 1130, 92MAY09 and retained onboard pending disciplinary action.
920509:  Placed in pretrial confinement.
920706:  Special Court Martial
         Charge I: violation of the UCMJ, Article 86, 1 Specification.
          Specification 1: Unauthorized absence from unit from 92APR20 until 92MAY09, [19 days/A].
          Added Charge: violation of the UCMJ, Article 112A, 1 Specification: on or about 92MAY07 did in the vicinity of Norfolk, VA wrongfully use cocaine.
          Findings: to Charge I and specification 1, guilty.
          To Addition Charge and specification 1, guilty.
         Sentence: Confinement for 59 days (Naval Brig Norfolk designated as place of confinement and admin credit of 59 days pretrial confinement granted), reduction to E-1, and bad conduct discharge.
          CA 921009: Sentence approved and ordered executed, except for bad conduct discharge.
         
920708:  To appellate leave.
930315:  NMCCMR: The findings of guilty and sentence, as approved on review, are affirmed.

930816:  SSPCMO: Article 71c, UCMJ, having been complied with, bad conduct discharge will be executed.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 930816 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).
Issues 1-7. In response to the applicant’s issues, 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 (C, Part IV). 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 Board found no merit in the applicant’s allegations that his discharge was too harsh, unfairly imposed or that his actions were mitigated by his illegal drug use, marital problems, or achievements while on active duty. Relief denied.
The applicant’s discharge characterization accurately reflects his service to his country. The discharge was proper and equitable. 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. The applicant 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 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. 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 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 Rm309
                  Washington Navy Yard DC 20374-5023      

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