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NAVY | DRB | 2002_Navy | ND02-00848
Original file (ND02-00848.rtf) Auto-classification: Denied


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

ex-MSSR, USN
Docket No. ND02-00848

Applicant’s Request
The application for discharge review, received 020530, requested that the characterization of service on the discharge be changed to general (under honorable conditions) or entry level separation or uncharacterized. The Applicant requested a documentary record discharge review or a personal appearance hearing before a traveling panel closest to San Diego, CA. The Applicant did not list any representative on the DD Form 293. In the acknowledgement letter to the Applicant, he was informed that the Naval Discharge Review Board does not travel; all hearings are held in the Washington, D.C. area. Additionally, the Applicant was informed that she was approaching the 15 year point for review by this Board and was encouraged to attend a personal appearance hearing in the Washington, D.C. area. Applicant did not respond and a documentary record discharge review was conducted.


Decision

A documentary discharge review was conducted in Washington, D.C. on 030221. After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, the 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, as submitted

1. Dear Sir/Madam:

I don't know how many times over these 13 years I started this letter to have my Bad Conduct Discharge reversed. I would toss aside my paper and pen and think that it's no big deal. What does it matter now? No one knows of my secret shame that I have been hiding all of these years. I also would just slyly change the subject when ever the topic of VA loans, Veteran benefits, GI Bill, etc. came up.

What finally gave me the courage to take this matter seriously and contact you was my five year old daughter, [name omitted]. Because our family consists of only her and I; I tried to stress to her about being responsible and honest. How can I possibly ask her to follow these Golden Rules, when I myself have been living a lie?

So, I am apologizing to the Navy for wasting their time and money offering me a career and personal structure that I obviously did not take seriously. The self-esteem, confidence, responsibility, and real friends that I so lacked at the time of duty, I now have. At that time, I stupidly relied on dealing drugs to give me those attributes. The wisdom I now have, I wish that I had then. But regrets of the past I cannot change, so I must concentrate on being a productive citizen now.

As you can see by some of my enclosed paperwork, I have been doing some productive activities for the community and improving my initial outlook on life. I'm also continuing my education and earning a degree (AA) as a paralegal. I feel 100% in control! I no longer take the "easy" way out with life's difficulties, I take them head on. It's so easy to blame mistakes in life on a rotten childhood, lack of attention and love from our parents or some sort of abuse, but it is up to the individual to rise above those obstacles and follow God's plan to be an adult who can be caring, kind, and generous. I am that person!

At this time, I am asking for a General Discharge. Hopefully you will agree that I have "served my time" past the four months that I was incarcerated. I have been "jailed" by me shame.

Thank you ladies and gentlemen for giving me the opportunity to hear my request to you.

Sincerely, [Applicant]

 Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Letter from Applicant (2 pgs)
Letter of Congratulation on Promotion (Front Desk Supervisor)
Letter of Recommendation from L_ S_, Front Office Manager, Quality Inn & Suites
Employee of the Month Certificate
Thank You Letter from R_ D. C_, PC
Special Thank You Letter from C_ J_, J_ H_, J_ T_ and F_ H_
Employment/Character Reference Letter from D_ A_, Manager, Tahoe Colony Inn
Certificate of Completion (Enhancing Reservations Sales)
Certificate of Completion (Basic Reading Tutor Training)
Resume
Volunteer Service Confirmation Letter

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     830112 - 830425  COG
         Active: USN                        None

 Period of Service Under Review :
Date of Enlistment: 830426               Date of Discharge: 890328

 Length of Service (years, months, days):

         Active: 05 07 01
         Inactive: None

 Age at Entry: 20                          Years Contracted: 4 plus 2mo extension 870424
          plus 10mo extension 870515
Education Level: 12                        AFQT: 65

 Highest Rate: MS3

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.65 (4)    Behavior: 3.52 (5)                OTA: 3.55

 Military Decorations: None

 Unit/Campaign/Service Awards: SSDR, BATTLE"E"RIBBON

 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 :

830504:  Applicant acknowledges and signs US Navy Drug Abuse Statement of Understanding.

830916:  Applicant signs standard Page 13 entry consisting of the Navy Drug Policy Statement of Awareness.

860805:  Retention Warning: Advised of deficiency of developing a serious pattern of misconduct as evidenced by Applicant's violations of the UCMJ on 860805 for Article 92, wrongfully violating a lawful general regulation, by wrongfully being in male berthing, notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.
860805:  NJP for violation of UCMJ, Article 92: Wrongfully violate a lawful general regulation on or about 860629.
         Award: Forfeiture of $100.00 pay per month for 1 month. No indication of appeal in the record.

870205:  NJP for violation of UCMJ, Article 121: Larceny, to wit: Stealing government property on or about 870128.
         Award: Forfeiture of $100.00 pay per month for 2 months, restriction and extra duty for 10 days. Punishment suspended for 6 months No indication of appeal in the record.
870716:  Punishment of restriction and extra duty for 10 days, and forfeiture of $100.00 pay per month for 2 months suspended at CO's NJP of 870205 vacated this date due to continued misconduct.

870716:  NJP for violation of UCMJ, Article 86: Unauthorized absence from unit 0600-0900 (3 hours), on or about 870628.
         Award: Reduction to E-3. No indication of appeal in the record.

870908:  Pretrial confinement from 870908 to 871105.

871105:  Special Court Martial
         Charge I : violation of the UCMJ, Article 81: Wrongful conspired with MMFA W_ "B". B_, U.S. Navy, to distribute methamphetamines on or about 870903. Charge II : violation of the UCMJ, Article 92: Violated a general order by wrongfully possessing drug paraphernalia on or about 870908. Charge III : violation of the UCMJ, Article 112a: (3 Specifi-cations) , Specification 1 : Wrongfully distributed 0.11 grams of methamphetamines on 870707; Specification 2 : Wrongfully distributed 0.99 grams of methamphetamines on 870903; Specification 3 : Wrongfully possess 0.09 grams of methamphetamines on 870908.
         Findings: to Charge I and specifications 1 thereunder, guilty. To Charge II and specification thereunder, guilty. To Charge III and specifications 1,2 and 3 thereunder, guilty. The findings of guilty as to the charges and specification of which the accused was found guilty were based on the accused's pleas of guilty.
         Sentence: Confinement for 5 months, forfeiture of $400.00 pay per month for 4 months, reduction to pay grade E-1, Bad Conduct discharge.

         CA 880413: In the special court-martial case of Mess Management Specialist Seaman R_A. C_, U.S. Navy, tried by order of Commanding Officer, USS CAPE COD (AD-43) on 5 November 1987, it appears that it is impracticable for the officer who convened the court to take action on the record. When it is impracticable for the person who convened the court to take action on the record, this action may be taken by an officer exercising general court-martial jurisdiction. MCM (1984), R.C.M. 1107(a) and JAGMAN 0145b. Accordingly, Commander, Cruiser-Destroyer Group FIVE is taking initial action on the record. The sentence is approved and, except for that part of the sentence extending to the bad conduct discharge, will be executed. The petitions for clemency of the accused date 9 November 1987 and 19 November 1987 were considered prior to taking this action. Navy Brig, USS ACADIA (AD-42), is designated as the place of confinement.

880108:  Released from confinement and restored to full duty.

880111:  Applicant to appellate leave.
880728:  Naval Clemency & Parole Board does not grant clemency; restoration denied.
881017:  Navy-Marine Corps Court of Military Review: The findings of guilty and sentence, as approved on review, are affirmed.
890328:  Special Court Martial Supplemental Order: Article 71(c), 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 890328 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 response to the Applicant's issue, relevant and material details 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 tried under the Uniform Code of Military Justice, the action of the NDRB is restricted to upgrades based upon clemency only (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 service records that the Board reviewed showed no mitigating or extenuating factors sufficient to offset the seriousness of the offenses for which the discharge was awarded. Relief is therefore denied.

The following is provided for the edification of the Applicant. There is no law or regulation that provides for an unfavorable discharge to be upgraded based solely on the passage of time or good conduct in the civilian life subsequent to leaving the service. However, the NDRB is authorized to consider post-service factors in the recharacteriza-tion of a discharge. 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 may be considered. Verifiable proof of 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. E vidence of continuing educational pursuits, an employment record, documentation of community service, certification of non-involvement with civil authorities, and credible evidence of a substance-free lifestyle are examples of verifiable documents that may be provided to receive consideration for relief based on post-service conduct. At this time, the Applicant has not provided sufficient documentation for the Board to consider an upgrade.

 The Applicant is reminded that she remains eligible for a personal appearance hearing, provided an application is received at the NDRB within 15 years from the date of her discharge. Representation at a personal appearance hearing is recommended but not required.




Pertinent Regulation/Law (at time of discharge)

 A . The Naval Military Personnel Manual, (NAVPERS 15560A), effective 15 Jun 87 until 13 Dec 89, 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, 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 D.C. 20374-5023    

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