Search Decisions

Decision Text

NAVY | DRB | 2002_Navy | ND02-01233
Original file (ND02-01233.rtf) Auto-classification: Denied


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

ex-BMSR, USN
Docket No. ND02-01233

Applicant’s Request
The application for discharge review, received 020828, 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. The Applicant listed a member of Congress as his representative on the DD Form 293. In the acknowledgement letter to the Applicant, he was informed that members of congress do not represent Applicants before the Board and that written authorization must be obtained from the Congressman. Such authorization was not received; therefore the case was reviewed without representation.

Decision

A documentary discharge review was conducted in Washington, D.C. on 030612. 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/Convicted by special court martial, authority: NAVMILPERSMAN, Article 3640420.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as submitted

1. I was hurt in a work related injury in Aug 2000 and I was terminated from insurance coverage. I applied for health benefits from the VA in Nov of 2000. I had a Honorable discharge from 1982 – 1986. I had a Dishonorable discharge from 1986 – 1989. VA accepted the Honorable discharge from 1982 – 1986. I was receiving treatment in the Wilmington, Delaware VA from Dec 2000 to Aug 2002. I was told from Mrs. E_ P_ in eligibility office on July 9, 2002 that I was ineligible for medical care because of the period from 3-12-86 – 04-16-89, because of a new billed passed. I served Honorable the first four years of my enlistment. I am asking for help for medical treatment. I am asking for help through Congressman R_ E. A_.

 Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Copy of DD Form 214 (82MAR12 – 86FEB05)
VA, Wilmington, DE, ltr dtd Feb 7, 2002, concerning Applicant’s ineligibility
VA’s ltr dtd Feb 7, 2001, concerning Applicant’s health care enrollment
Wilmington VAMROC Outpatient Notes dtd Jan 10, 2002
Wilmington VAMROC Outpatient Notes dtd May 09, 2002
VA’s Statement of Patient’s Treatment dtd Apr 10, 2002

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     820220 - 820311  COG
         Active: USN                        820312 - 860205  HON

 Period of Service Under Review :
Date of Enlistment: 860206               Date of Discharge: 890406

 Length of Service (years, months, days):

         Active: 03 02 01 (Doesn’t exclude lost/confinement time.)
         Inactive: None

 Age at Entry: 24                          Years Contracted: 4

 Education Level: 13                        AFQT: 54

 Highest Rate: BM2

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.87 (3)    Behavior: 3.87 (3)                OTA: 3.87

 Military Decorations: None

 Unit/Campaign/Service Awards: SSDR, NEM, GCA

 Days of Unauthorized Absence: 27

 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 :

860206:  Reenlisted for a term of four years on-board USS GLOVER (FF-1098) at Norfolk, VA.
871030:  NJP for violation of UCMJ, Article 112A: Wrongful use of a controlled substance.
         Award: Forfeiture of $627 per month for 2 months, restriction and extra duty for 45 days, reduction to E-4. No indication of appeal in the record.
880202:  Unauthorized absence from USS GARCIA at Philadelphia, PA. Intentions unknown.

880229:  Apprehended by civil authorities at 1940 by Philadelphia Police Dept.
         Delivered to military jurisdiction at USS GARCIA (FF 1040) at 2021 this date. Transferred to Navy Brig Philadelphia at 0050, 88MAR01 for pre-trial confinement.

880301:  Pre-trial confinement at Naval Brig Philadelphia.

880324:  Special Court-Martial.
         Charge I: violation of the UCMJ, Article 86
 Specification – Unauthorized absence from 2FEB88 – 29FEB88.
          Charge II: violation of the UCMJ, Article 112A
         Specification – Wrongfully used cocaine.
         Findings: to Charges I and II and specification thereunder, guilty.
         Sentence: Confinement for 55 days, forfeiture of $300 per month for 5 months, reduction to E-1, bad conduct discharge.
         CA 880615: Sentence approved and ordered executed, except for bad conduct discharge and the execution of that part of the sentence adjudging confinement in excess of 45 days is suspended for 12 months from 24 March 1988.
         SA: see SSPCMO.

880324:  Joined Naval Brig, Naval Station, Philadelphia, PA, for confinement.

880406:  From confinement; to appellate leave.
880830:  NMCCMR: The findings of guilty and sentence, as approved on review, are affirmed.
890301:  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 890406 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. 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 and documentation provided by the Applicant devoid of any mitigating or extenuating factors sufficient to offset the seriousness of the offenses for which the discharge was awarded. The Veterans Administration determines eligibility for post-service benefits, not the NDRB. There is no requirement or law that grants recharacterization solely on the issue of obtaining veterans’ benefits and this issue does not serve to provide a foundation upon which the Board can grant relief.
 Relief 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 . 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. 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, illegal drug use.

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 Rm 309
                  Washington Navy Yard D.C. 20374-5023    


Similar Decisions

  • NAVY | DRB | 2000_Navy | ND00-01032

    Original file (ND00-01032.rtf) Auto-classification: Denied

    850927: Unauthorized absence from USS INDEPENDENCE (CV62) located at PNSY, Philadelphia, PA since 1330, 85SEP27, intentions unknown. The Board after considering the applicant’s entire application and service record did not find relief warranted. 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...

  • NAVY | DRB | 1997_Navy | ND97-01373

    Original file (ND97-01373.rtf) Auto-classification: Denied

    ND97-01373 Applicant’s Request The application for discharge review, received 970909, requested that the characterization of service on the discharge be changed to honorable and the reason for discharge changed to “is diagnosed as manic deppersed, reasons found after discharge”. PART II - SUMMARY OF SERVICE Prior Service (component, dates of service, type of discharge): Active: None Inactive: USNR (DEP) 891201 - 900318 COG Period of Service Under Review :Date of Enlistment: 900319 Date of...

  • NAVY | DRB | 2000_Navy | ND00-00234

    Original file (ND00-00234.rtf) Auto-classification: Denied

    (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. 870910: Applicant on appellate leave.880310: NMCCMR: The findings of guilty and sentence, as approved on review, are affirmed.880616: SSPCMO: Article 71c, UCMJ, having been...

  • NAVY | DRB | 2001_Navy | ND01-00499

    Original file (ND01-00499.rtf) Auto-classification: Denied

    At the time I went into the navy, I was very ambisious about being in the service. Applicant declared a deserter on 860501 having been an unauthorized absentee since 0715, 860331 from USS DAHLGREN (DDG-43).880108: Report of Return of Deserter. 880229: Special Court Martial Charge I: violation of the UCMJ, Article 86, (0) Specifications.

  • NAVY | DRB | 2000_Navy | ND00-00360

    Original file (ND00-00360.rtf) Auto-classification: Denied

    Intentions unknown.850423: Applicant surrendered to military authorities at 1700, onboard Naval Station Philadelphia, PA. (25 days UA).850426: Applicant commenced unauthorized absence at 0730, 85APR26, while being processed by NAVSTA Phila, PA for transfer to USS PELELIU (LHA 5) under technical arrest orders. Sentence: Confinement for 31 days, reduction to E-1, Bad Conduct discharge. After a thorough review of the records, supporting documents, facts, and circumstances unique to this case,...

  • NAVY | DRB | 2000_Navy | ND00-00739

    Original file (ND00-00739.rtf) Auto-classification: Denied

    890127: NMCCMR: The findings of guilty and sentence, as approved on review, are affirmed.890824: SSPCMO: Article 71c, UCMJ, having been complied with, Bad Conduct discharge ordered executed. 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).The applicant’s first issue states: “My undesirable discharge was inequitable because of a one time conviction in a year and a...

  • NAVY | DRB | 2004_Navy | ND04-00497

    Original file (ND04-00497.rtf) Auto-classification: Denied

    The Applicant requests the characterization of service received at the time of discharge be changed to honorable. 911119: Joined Navy Brig, Naval Station, Long Beach, California for confinement.911209: From confinement; to appellate leave.941223: NMCCA: The findings of guilty and sentence, as approved on review, are affirmed950501: SSPCMO: Article 71c, UCMJ, having been complied with, Bad Conduct discharge ordered executed. After a thorough review of the Applicant’s record, issues...

  • NAVY | DRB | 2001_Navy | ND01-00587

    Original file (ND01-00587.rtf) Auto-classification: Denied

    While the applicant’s efforts with the New Jersey Naval Museum are commendable, the Board did not find the applicant’s post service documentation significant enough to warrant clemency. The NDRB, under its responsibility to examine the propriety and equity of an applicant's discharge, will change the reason for discharge if such a change is warranted. The summary of service clearly documents that conviction by special court martial was the reason the applicant was discharged.

  • NAVY | DRB | 1999_Navy | ND99-00891

    Original file (ND99-00891.rtf) Auto-classification: Denied

    (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 General (Under Honorable Conditions) on the basis of his post-service conduct. 870122: Special Court Martial Charge I: violation of the UCMJ, Article 86, 2 Specifications. PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW...

  • NAVY | DRB | 2003_Navy | ND03-00592

    Original file (ND03-00592.rtf) Auto-classification: Denied

    My name is R_ J. S_, I was discharged from the Navy in 1992 with a bad conduct discharge I am writing to request an upgrade to general under honorable conditions, since being discharged I’ve never been in jail or even a speeding ticket. After a thorough review of the Applicant’s record, issues submitted, and post service accomplishments, the Board determined that clemency was not warranted. Examples of documentation that should be provided to the Board include proof of educational...