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NAVY | DRB | 2002_Navy | ND02-00725
Original file (ND02-00725.rtf) Auto-classification: Denied


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

ex-SKSR, USN
Docket No. ND02-00725

Applicant’s Request
The application for discharge review, received 020424, 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. Subsequent to the application, the Applicant obtained representation by the Veterans of Foreign Wars.

Decision

A documentary discharge review was conducted in Washington, D.C. on 030124. 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 believe that the discharge that I received was to harsh a punishment. I was on restriction and was being processed for an Other Than Honorable Discharge for testing positive on a random urinalysis screening when I committed a grievous mistake of going on an unauthorized leave of absence from my command. Prior to this unfortunate incident, I have served this country continuously for five years in active duty status. That I have been a productive and responsible Petty Officer before I fell victim to chemical dependency. Please put in consideration that I have also served this country proudly and honorably while in active duty status during the war with Panama (Operation: Just Cause in 1989) and also during the Persian Gulf War (Operation: Desert Shield and Desert Storm - 1990-91).

Sir, with the type of discharge that I received, I never was able to get any decent and permanent employment in the civilian community. With-out a stable job, I won't be able to survive in any society. I do acknowledge that I have done some wrong and that I committed mistakes. I have suffered continuously for ten (10) long years, the consequences of my actions. I am so sorry and deeply regretted all the wrongs that I have committed before in the past. I was young then. Had I known then what I know now, I wouldn't be in this predicament. Having a bad conduct discharge is almost comparable to be sentenced to a life imprisonment. I am humbly and very respectfully requesting this honorable board to please help me get a second chance to get my life back on track.

Sir, I am humbly and very respectfully asking for your help and for your consideration. Please grant me my request for an upgrade of discharge into General Discharge Under Honorable Conditions. Help in being able to get my life back on track. For a chance to be able to stay in this country that I love. A country that I have served and helped protect. Please put in consideration that I have also put my life on the line in service to this great country. I strongly believe and have faith in this system. Than one day, this system that I once served and protect will be able to help me redeem myself from all the wrongs that I have done before in the past.

Sir, for the love of God and out of the kindness of your heart. Please help me. With-out your help, I won't be able to correct all the mistakes that I've done. With-out your help, I will never be able to get a chance to get my life back on track. Help me become a productive and responsible member of society. Have mercy on me and please give me a second chance. Thank you so much, and my god bless you all. Sincerely, (Signed by the Applicant)

Submitted by VFW:

2. We support the Applicant's contention discharge upgrade. We refer this case to the Board for their careful and compassionate consideration and request the Applicant's discharge be reviewed for clemency discharge as per SECNAVINST 5420.174C, Par 1.12.

 Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant's Personal Letter to the Board dtd Feb 13, 2002 (3 pages)
Letter of Commendation from CO, USS GERMANTOWN, dtd Oct 9, 1989
Letter of Commendation from CO, USS GERMANTOWN, dtd 18 Nov 89
Applicant's Enlisted Performance Evaluation Reports (7)
Copy of DD Form 214

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: None
         Active: None

 Period of Service Under Review :
Date of Enlistment: 861111               Date of Discharge: 931026

 Length of Service (years, months, days):

         Active: 06 11 16 (Does not exclude lost/confinement/appellate leave time.)
         Inactive: None

 Age at Entry: 22                          Years Contracted: 6 (1 month extension)

 Education Level: 12      (Attended school in Philippines.)
AFQT: 74

 Highest Rate: SK2

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.7 (6)     Behavior: 3.51 (7)                OTA: 3.6

 Military Decorations: None

 Unit/Campaign/Service Awards: Battle "E" Ribbon, SSDR(2), Coast Guard Special Operations Ribbon

 Days of Unauthorized Absence: 13

 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 :

870803:  Unauthorized absence from USS GERMANTOWN since 0700. Intentions unknown.

870806:  Surrendered onboard at 1115, 87AUG06. (3 days)
870814:  NJP for violation of UCMJ, Article 86: Unauthorized absence.
         Award: Forfeiture of $150 per month for 2 months, restriction and extra duty for 20 days. No indication of appeal in the record.
870814:  Retention Warning: Advised of deficiency (unauthorized absence), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

871009:  NJP for violation of UCMJ, Article 86: Unauthorized absence (25 hours) on 87OCT07.
         Award: Forfeiture of $100 per month for 2 months, restriction and extra duty for 30 days. No indication of appeal in the record.
900209:  NJP for violation of UCMJ, Article 112A: Wrongful use of controlled substance.
         Award: Forfeiture of $200 per month for 1 month, restriction and extra duty for 30 days and removed frocked position (E-5), not advanced. No indication of appeal in the record.

 900220:  DAAR: Unit sweep urinalysis, positive for amphetamines, abused ashore - off duty, date of incident - Feb 09, 1990, evaluated by CAAC, not dependent. Excellent worker and proven performer, has excellent potential for further naval service and must avoid further drug/alcohol incidents.
910903:  Counseling: Advised of deficiency (failure to meet the physical readiness standards due to failing the official PRT/failing to participate in the official PRT), notified of corrective actions and assistance available.
920107:  Unauthorized absence from SIMA San Diego, CA since 1230, 92JAN07, surrendered onboard SIMA at 1359, 92JAN08.

920304:  NJP for violation of UCMJ, Article 86 (5 Specs): Unauthorized absence Spec 1 - on or about 0730, 24DEC91 until on or about 0833, 24DEC91; Spec 2 - on or about 1220, 26DEC91 until on or about 0730 27DEC91; Spec 3 - 1230, 07JAN92 until on or about 1359, 08JAN92;
Spec 4 - 0730, 09JAN92 until 0906, 09JAN92;
Spec 5 - 0730, 14JAN92 until on or about 1000, 14JAN92
Violation of UCMJ, Article 92: Did on or about 26FEB92 having knowledge of a lawful order issued by SECNAV to wit: SECNAVINST 5300.28A failed to obey the same by wrongfully having marble slab, glass pipe, blade holder, two box cutter's black tube, butane fuel, ice pick and non locking pocket knife, designed for the purpose of smoking a controlled substance. Violation of UCMJ, Article 112a: Did on or about 13FEB92 at or near San Diego CA wrongfully used amphetamine/methamphetamine. Violation of UCMJ, Article 134: Did on or about 20FEB92 wrongfully communicate to BT1 A_ a threat to have a shoot out.
         Award: Forfeiture of $585 per month for 2 months, restriction and extra duty for 45 days, reduction to E-4 (SK3). No indication of appeal in the record.
920316:  Unauthorized absence from SIMA, San Diego, CA since 0715, intentions unknown. Apprehended by civil authority at 1942, 92MAR20, Civil charges pending.

920325:  Delivered aboard SIMA San Diego, CA at 1000. Retained onboard pending disciplinary action and was restored to full duty status to make good lost time.

920325:  Pre-trial confinement.

 920522:  Special Court Martial
         Charge I: violation of the UCMJ, Article 86: Specification - Unauthorized absence from unit from 16MAR92 until apprehension on 20MAR92.
         Charge II: violation of the UCMJ, Article 112a: Specification - Wrongfully used methamphetamine on 26FEB92.
         Charge III: violation of the UCMJ, Article 134 (3 Specifications) -
         Specification 1: Broke restriction from the limits of Naval Station, San Diego, CA on or about 16MAR92.
         Specification 2: Wrongfully communicated a threat to a PO2 on or about 23MAR92.
         Specification 3: Wrongfully possessed a false I.D. card on or about 25MAR92.
         Findings: to Charge I and specification thereunder - guilty; to Charge II and specification thereunder - guilty; to Charge III and specifications 1 and 3, thereunder - guilty (spec 2 - not guilty).
         Sentence: Confinement for 90 days, forfeiture of $500 per month for 3 months, reduction to E-1, and Bad Conduct discharge.
         CA 920818: Sentence approved and ordered executed and the Naval Consolidated Brig, NAS, Miramar, San Diego is designed as the place of confinement.

920522:  Joined NAVCONBRIG, Miramar, CA, for confinement.

920607:  From confinement; to appellate leave and joined NAVAPLVACT Washington, DC for record purposes.
930315:  NMCCMR: The findings of guilty and sentence, as approved on review, are affirmed.

931026:  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 931026 with a bad conduct discharge 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).

 Issue 1: In response to the Applicant’s issue, 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. Relief denied.

Issue 2: T here 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, a positive employment record, documentation of community service, certification of non-involvement with civil authorities and credible evidence that the Applicant is living a drug free life style, 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 any credible evidence to warrant post-service consideration. Relief denied.

The Applicant remains eligible for a personal appearance hearing, provided an application is received, at the NDRB, within 15 years from the date of discharge. The Applicant can provide additional documentation to support any claims of post-service accomplishments at that time. Representation at a personal appearance hearing is recommended but not required.





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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