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NAVY | DRB | 2004_Navy | ND04-01074
Original file (ND04-01074.rtf) Auto-classification: Denied


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

ex-SHSR, USN
Docket No. ND04-01074

Applicant’s Request
The application for discharge review was received on 20040622. The Applicant requests the characterization of service received at the time of discharge be changed to general (under honorable conditions). The Applicant requests a documentary record review. The Applicant listed the Veterans of Foreign Wars as the representative on the DD Form 293.

Decision

A documentary review was conducted in Washington, D.C. on 20050304. After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, no impropriety or inequity in the characterization of the Applicant’s service was discovered by the NDRB. 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 stated

 Applicant’s issues, as stated on the application:

1. “Dear Sir/Madam,

My purpose of writing this to you, are to highlight the positive changes I have made in my life since my discharge from the Navy. Indeed, it is a different lifestyle in the civilian world but these changes have been good and positive to me.

First and foremost, I have been an active church member of the Central Holiness Church since my departure from the Navy. Apostle J_ T. B_ ministers this church; who is coincidentally my father too. I am actively involved in the church choir, and the youth group. I find it rewarding helping and encouraging other members to be more involved in the church’s programs.

Many of my friends and colleagues can vouch that I am a hard worker, a dedicated father and husband to my family, and also a good friend whom they can count on.

Last but not least, I have served my country with pride, honor, and loyalty. Although, my discharge from the Navy had tainted my reputation as an officer but it did not stop me from being a good man and husband.

Your consideration in favorably reviewing my application is much appreciated.

Thank you.

Sincerely,

K_ E_ B_
E-1/SHSN”

 Issues submitted by Applicant’s counsel/representative ( Veterans of Foreign Wars):
1. “ Propriety or Equity Issue(s): The applicant’s defense counsel presented an inadequate defense at his trial by Special Court Martial. The applicant presents evidence that he is a man of honorable character and high moral standing.

Statement: In accordance with 32 CFR § 724, and SECNAVINST 5420.174D, the Veterans of Foreign Wars submits to the Naval Discharge Review Board (NDRB) the above issue and following statement in supplement to the Applicant’s petition.

The applicant is asking that his Bad Conduct Discharge be upgraded based on his contention that he was not guilty of the charges of which he was convicted at his trial by Court Martial. To that end, he has submitted numerous statements attesting to his strong moral character and his pre and post-service achievements. He was honorably discharged from the US Navy in May 1994, and had been recommended for promotion to PO 1 st Class. The applicant has a Bachelor’s degree and has been gainfully employed since his discharge from the Navy.

The Veterans of Foreign Wars’ express purpose in providing this statement and any other submittals or evidence filed is to assist this applicant in the clarification and resolution of the impropriety or inequity raised. To that end, we rest assured that the NDRB’s final decision will reflect sound equitable principles consistent in law, regulation, policy and discretion as promulgated by title 10 USC § 1553, and set forth in 32 CFR § 724 and SECNAVINST 5420.174D.

This case is now respectfully submitted for deliberation and disposition.”
Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant’s DD Form 214
Character Reference Letter from N_ B_, undated
Character Reference Letter from Apostle J_ T. B_, undated
Character Reference Letter from H_ J_, undated
Bachelor of Business Administration Degree, West Georgia College, dated 12 Jun 1988
Applicant’s resume (2 pages)
Certificate of Honorable Discharge, dated 17 May 1994

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     890919 - 891121  COG
         Active: USN                        891122 - 940517  HON

 Period of Service Under Review :
Date of Enlistment: 940518               Date of Discharge: 960919

 Length of Service (years, months, days):

         Active: 02 04 00
         Inactive: None

 Age at Entry: 31                          Years Contracted: 2 (2 months extension)

 Education Level: 12                        AFQT: 68

 Highest Rate: SH2

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 4.0 (1)              Behavior: 4.0 (1)                 OTA: 4.0

 Military Decorations: None

 Unit/Campaign/Service Awards: NDSM, SSDR (3), NUC, JMUA, KLM, MUC (2), SASM, NER

 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 :

941025:  Special Court Martial
         Charge: violation of the UCMJ, Article 112a.
         Specification: Wrongful use of cocaine on or about 940726
         Findings: to the Charge and sole specification thereunder, guilty.
         Sentence: Reduction to E-1, Bad Conduct discharge.
         CA 950404: Sentence approved and ordered executed, except for bad conduct discharge.
         SA: see SSPCMO.

941101:  To appellate leave.
941115:  DAAR: Applicant was evaluated by CAAC on 941107 due to positive urinalysis for cocaine. Applicant did not meet the criteria for alcohol/drug dependency per OPNAVINST 5350.4B. Applicant has poor potential for future naval service.
960419:  NMCCCA: The findings of guilty and sentence, as approved on review, are affirmed.
960625:  Applicant petitioned USCAAF for grant of review.

 960911:  USCAAF: Petition for grant of review denied.

960919:  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 19960919 with a bad conduct discharge which was the sentence adjudged by a properly convened special court-martial. That sentence was subsequently approved by both the convening and appellate review authorities (A and (B). The Board presumed regularity in the conduct of governmental affairs (C).

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. Clemency is an act of leniency that reduces the severity of the punishment imposed. Relevant and material facts stated in a court-martial specification are presumed by the NDRB to be established facts. The Applicant was convicted of one specification of a violation of UCMJ Article 112a, wrongful use of cocaine. After a thorough review of the Applicant’s record, issues submitted, and post service accomplishments, the Board determined that clemency was not warranted. The Applicant’s conduct, which forms the primary basis for determining the character of his service, reflects his willful failure to meet the requirements of his contract with the U.S. Navy. Such conduct falls far short of that expected of a member of the U.S. military. Therefore, t he Board found that the sentence awarded the Applicant at his court-martial was appropriate for the offenses he committed. Relief denied.

There 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 naval service. The NDRB is authorized to consider post-service factors in the recharacterization of a discharge to the extent such matters provide a basis for a more thorough understanding of the Applicant’s performance and conduct during the period of service under review. Examples of documentation that should be provided to the Board include proof of educational pursuits, verifiable employment records, documentation of community service, credible evidence of a substance free lifestyle and certification of non-involvement with civil authorities. As of this time, the Applicant has not provided sufficient documentation for the Board to consider. 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 documentation to support any claims of post-service accomplishments or any other evidence related to his discharge 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, wrongful use of a controlled substance.

C. Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part II, AUTHORITY/POLICY FOR DEPARTMENTAL DISCHARGE REVIEW.



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 “ http://Boards.law.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:

                  Secretary of the Navy Council of Review Boards
                   Attn: Naval Discharge Review Board
                   720 Kennon Street SE Rm 309
                  Washington Navy Yard DC 20374-5023

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