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NAVY | DRB | 2002_Navy | ND02-01020
Original file (ND02-01020.rtf) Auto-classification: Denied


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

ex-HR, USN
Docket No. ND02-01020

Applicant’s Request
The application for discharge review, received 020711, requested that the characterization of service on the discharge be changed to honorable or general/under honorable conditions. The Applicant requested a documentary record discharge review. The Applicant listed Parker County Veterans Service as the representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 030501. 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 respectfully request this upgrade because I believe that the mistake I made. I think I have suffered greatly because of this BCD. At this point I believe that this upgrade would allow me a chance to take advantage of some of the programs and benefits I have missed out on. I can honestly tell this review board that this sailor's lesson has been learned. I have been a model member of society since my discharge. I pray, ask, and thank the Naval Discharge Review Board for this consideration.

 Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant's DD Form 214

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     880419 - 880426  COG
         Active: None

 Period of Service Under Review :
Date of Enlistment: 880427               Date of Discharge: 960312

 Length of Service (years, months, days):

         Active: 07 10 16                  (Does not exclude appellate leave)
         Inactive: None

 Age at Entry: 22                          Years Contracted: 4

 Education Level: 12                        AFQT: 65

 Highest Rate: HM3

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.62 (8)    Behavior: 3.07 (8)                OTA: 3.32

 Military Decorations: None

 Unit/Campaign/Service Awards: NDSM, GCM, MUC, KL, NUC, SASM (1), FMFR, SSDR

 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 :

880419:  Pre-service drug use waiver granted.

880428;  Applicant briefed on Navy's policy on drug and alcohol abuse.

 890228:  Civil Conviction: Extracted from Enlisted Performance Record (NAVPERS 1070/609).] No further information found in service record.

920311:  NAVDRUGLAB, Jacksonville, FL, reported Applicant’s urine sample, received 920305, tested positive for THC.

920729:  NAVDRUGLAB, Jacksonville, FL, reported Applicant’s urine sample, received 920305, retested positive for THC.

920731:  Special Court Martia1 [court dates: 920605, 920730, 920731]
         Charge I: violation of the UCMJ, Article 112A:
         Specification: Wrongfully use marijuana between 920223 and 920303.
         Findings: to Charge I, and specification thereunder, guilty.
         Sentence: Bad Conduct discharge.
         CA 930618: Sentence approved and order executed, except for bad conduct discharge.
        
920909:  Applicant to appellate leave.
940421:  NC&PB clemency not granted; restoration denied.

 950531:  NMCCMR: The findings of guilty and sentence, as approved on review, are affirmed.

960312:  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 960312 with a bad conduct discharge which was the sentence adjudged by a properly constituted special court-martial that was determined to be legal and proper, affirmed by appellate review authority and executed (A and (B). The Board presumed regularity in the conduct of governmental affairs (C). 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 (D and E).

Issue 1: 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, credible evidence that the Applicant is living a drug free lifestyle, and certification of non-involvement with civil authorities, are examples of verifiable documents that should be provided to receive consideration for relief, based on post-service conduct. The Applicant failed to provide any post-service documentation. 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. The Manual for courts-martial authorizes the award of a punitive discharge if adjudged as part of the sentence upon conviction by a special or general court martial for violation of the UCMJ, Article 112A.

C. 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.

D. 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.

E. 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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