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NAVY | DRB | 2002_Navy | ND02-00941
Original file (ND02-00941.rtf) Auto-classification: Denied


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

ex-BUCR, USN
Docket No. ND02-00941

Applicant’s Request
The application for discharge review, received 020618, requested that the characterization of service on the discharge be changed to honorable. The Applicant requested a personal appearance hearing before the board in the Washington National Capital Region. The Applicant listed the American Legion as the representative on the DD Form 293. In the acknowledgement letter to the Applicant, the Applicant was informed that the Naval Discharge Review Board (NDRB) first conducts a documentary review prior to any personal appearance hearing.

Decision

A documentary discharge review was conducted in Washington, D.C. on 030410. 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. (Equity Issue) Pursuant to 10 USC 874 (b) (UCMJ, Article 74) and in accordance with SECNAVINST 5420.174C, enclosure (1), paragraphs 2.24 and 9.3, this former member requests the Board’s clemency relief with up-grade of his characterization of service to under honorable conditions on the basis of his post-service conduct.

Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Three pages from Applicant's record of trial
Character reference dated December 12, 1999
Appreciation letter dated September 22, 2000
Character reference dated May 15, 2000
Character reference dated November 11, 1999
Character reference from Applicant's wife dated October 20, 1999
Character reference dated November 18, 1999
Applicant's driving record
Letter from Applicant dated November 16, 1999
Applicant's Résumé
Applicant's DD Form 214
Sixteen pages from Applicant's service record

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     890822 - 900103  COG
         Active: None

 Period of Service Under Review :
Date of Enlistment: 900104               Date of Discharge: 940726

 Length of Service (years, months, days):

         Active: 04 06 23 (Includes time for appellate review)
         Inactive: None

 Age at Entry: 19                          Years Contracted: 4

 Education Level: 12                        AFQT: 35

 Highest Rate: BU3

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.75 (4)    Behavior: 3.60 (4)                OTA: 3.65

 Military Decorations: None

 Unit/Campaign/Service Awards: NDSM, SSDR(2), SASM with Bronze Star

 Days of Unauthorized Absence: None

 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 :

900109:  Applicant briefed on Navy's policy of drug and alcohol abuse.

 930210:  Special Court Martial:
         Charge I: violation of the UCMJ, Article 92, (2 specs):
         Specification 1 : Failure to obey Battalion Seven Instruction 11240.3 between 920912 and 920913 by wrongfully consuming or being under the influence of alcoholic beverages during or for eight hours prior to the operation of a government vehicle. Specification 2 : Failure to obey Battalion Seven Instruction 11240.3 between 920912 and 920913 by wrongfully having an open alcoholic beverage container within a government vehicle.
         Charge II: violation of the UCMJ, Article 108 (2 specs):
         Specification 1 : Negligently damage one government vehicle, a value of $4,000.00, by having consumed alcohol and falling asleep at the steering wheel pm 920913. Specification 2 : Negligently damaged government vehicle, a value of $4,000.00, by driving it after having consumed alcohol and falling asleep at the steering while on 920913.
         Charge III: violation of the UCMJ, Article 111 (2 specs):
         Specification 1 : Operate a government vehicle while drunk or when the alcohol concentration in blood or breath was 0.10 grams on 920913.
         Specification 2 : Operate a government vehicle in a reckless manner by consuming alcohol before driving and falling asleep at the steering wheel on 920913.
         Findings: to Charge II and specification 2 and Charge III and specification 2 thereunder, guilty. Charge I and specifications 1 and 2, Charge II and specification 1, Charge III and specification 1 thereunder, not guilty.
         Sentence: CHL for 75 days, forfeiture of $500 per month for 6 months, reduction to BUCR, Bad Conduct discharge.
         CA 930608: Sentence approved and ordered executed, except for bad conduct discharge, but the execution of that part of the sentence adjudging confinement and forfeiture of pay is suspended for 12 months at which time, unless the suspension is sooner vacated, the suspended part of the sentence will be remitted without further action.
         SA: see SSPCMO.

940426:  Navy-Marine Corps Court of Military Review: The findings of guilty and sentence, as approved on review, are affirmed.
940726:  Special Court-Martial Supplemental Order: Article 71(c) of the UCMJ, having been complied with, the Bad Conduct discharge is ordered executed.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 940726 with a bad conduct discharge which was the sentence adjudged by a properly constituted special court-marital that was determined to be legal and proper, affirmed by appellate review authority and executed (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 contends, through counsel, that aspects of his post-service conduct, to include continuous employment, professional development, and a stable family life, should be considered in the recharacterization of his discharge. The NDRB is authorized to consider post-service factors in the recharacterization of a discharge even though 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. 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. While the Board recognizes all of the positive accomplishments for which the Applicant has submitted documentation, that documentation is currently not sufficient for the Board to consider an upgrade to his characterization of discharge. Additional 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 his bad conduct discharge. In addi-tion to the employment record already submitted, evidence of continuing educational pursuits, documentation of community service, and certification of non-involvement with civil authorities are examples of documentation that may be presented to the Board for consideration of relief based on post-service conduct. Relief on this basis is therefore denied.

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. 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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