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NAVY | DRB | 2005_Navy | ND0500539
Original file (ND0500539.rtf) Auto-classification: Denied


DEPARTMENT OF THE NAVY
NAVAL DISCHARGE REVIEW BOARD (NDRB)
 DISCHARGE REVIEW
DECISIONAL DOCUMENT
FOR OFFICIAL USE ONLY

ex-ICFR, USN
Docket No. ND05-00539

Applicant’s Request
The application for discharge review was received on 20050203. The Applicant requested a documentary record discharge review and that his characterization of service be changed to honorable. The Applicant designated Veterans Service Organization as the representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20060504. After a thorough review of all available 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 characterization of the discharge shall not change. The discharge shall remain as a bad conduct discharge by reason of court-martial conviction.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Applicant’s issues, as stated on the application:

“REQUEST UPGRADE TO HONORABLE TO FURTHER JOB PROSPECTS AND EDUCATIONAL OPPORTUNITIES. JUSTIFICATION BEING THAT I DID SERVE MY COUNTRY VOLUNTARILY AND HONORABLY FOR INITIAL ENLISTMENT PERIOD OF 4 YEARS. I HAVE HELD JOBS SINCE MY SEPARATION AND AM A TAX PAYER AND VOTER. I REGULARLY ATTEND CHURCH AND BIBLE STUDY. I AM SORRY THAT I COMMITTED THE OFFENSE AT THE INCONVENIENCE OF MY COMMAND AND THE U.S NAVY. I ENJOYED SERVING AS A SAILOR AND APPRECIATE ANY ASSISTANCE A BOARD OF REVIEW CAN SERVE IN MY FAVOR. THIS PAST 7 OR 8 YEARS HAS NOT BEEN EASY IN ANYWAY AND I PLEAD FOR MERCY IN THIS MATTER. I DON’T WANT TO GO ON FOR THE REST OF MY LIFE REGRETTING MY MISTAKE THAT HAS ALREADY DONE DAMAGE TO MY PROFESSIONAL CAREER AND LIVELIHOOD. RESPECTFULLY YOURS-[SIGNED] K_ D_ L_.”

 Applicant’s remarks, as stated on the application:

“LOOKING BACK AT “MY” MILITARY SERVICE, ITS DIFFICULT TO HAVE ANY PRIDE IN MYSELF AND MY NAME. MY GRANDFATHER SERVED IN THE ARMY IN WORLD WAR II AND WAS KILLED IN ACTION IN FRANCE. MY BROTHER SERVED 6 YEARS IN THE MARINE CORPS. MY FATHER WHO PAST AWAY IN JAN 2001, WORKED FOR THE INDIANA DEPT OF NATURAL RESOURCES-DIVISION OF FISH AND WILDLIFE FOR 35 YEARS. MY GRANDFATHER WHO JUST TURNED 86 SERVED IN THE NAVY DURING WORLD WAR II. AFTER ALL OF THEIR MILITARY SERVICE AND SERVICE OF THE STATE I CAN ONLY ADMIRE THEIR HONORABLE SERVICE AND SACRIFICE, WHEN I GAVE UP SEVERAL VALUABLE YEARS OF MY YOUNG ADULT LIFE ONLY FOR SELF DESTRUCTION AND SHAME!”
Statement submitted by the Applicant’s representative (Veterans Service Organization):

“Please make correction based on Veterans Statement along with awards sent to you Feb 10 2006. Veteran has nothing else to Submit presently. This is in response to April 14, 2006 Letter.”


 Documentation
The Applicant submitted the following documentation for the Board’s consideration in addition to the service and medical record:
Statement from Applicant, dated 25 Jan 05 (2 pages)
Applicant’s DD Form 214 (2 copies)
Enlisted Performance Evaluation, period of 23 Jul 1994 through 06 Mar 1995 (2 pages)
Enlisted Performance Evaluation, period of 01 Jul 1993 through 30 Jun 1994 (2 pages)
Enlisted Performance Evaluation, period of 01 Jul 1992 through 30 Jun 1993 (2 pages)
Enlisted Performance Evaluation, period of 17 Jan 1992 through 30 Jun 1992 (2 pages)
Enlisted Performance Evaluation, period of 19 Jul 1991 through 16 Jan 1992 (2 pages)
Enlisted Performance Evaluation, period of 01 Feb 1991 through 18 Jul 1991 (2 pages)
Enlisted Performance Evaluation, period of 30 May 1990 through 31 Jan 1991 (2 pages)
Course completion record, dated 24 Apr 1992
Certificate of Completion, Stabilized Glide Slope Indicator, dated 24 Apr 1992
Certificate of Completion, Asbestos Emergency Ripout Orientation Procedures, dated 05 Feb 1991 (2 copies)
Certificate of Completion, Shipboard Insulating Techniques, dated 14 Feb 1991 (2 copies)
Certificate of Completion, Petty Officer Indoctrination Course, dated 09 Jan 1992 (3 copies)
Certificate of Completion, Cosal Use and Maintenance, dated 06 Mar 1992
Certificate of Completion, Shipboard Lagging, dated 22 Mar 1991
Verification of Military Experience and Training, dated 01 Jan 1993 (DD Form 2586, 9 pages)
Certificate of Completion, Interior Communications Electrician “A” School, dated 13 Dec 1991 (2 copies)
Certificate of Honorable Discharge, dated 15 Feb 1994 (2 copies)
Letter of authority to assume the title and wear the uniform of a Petty Officer Second Class, dated 08 Dec 1994 (2 copies)
Letter of authority to assume the title and wear the uniform of a Petty Officer Third Class, dated 17 Jan 1992 (2 copies)
Certificate of Reenlistment, dated 16 Feb 1994 (2 copies)
Certificate of Flag Presentation, dated 28 Feb 1994 (2 copies)
Certificate of First Good Conduct Award, dated 16 Jul 1993 (2 copies)
Letter from P_ R. R_, Veteran Service Organization, dated 10 Feb 2006

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     19890630 – 19890716               COG
         Active: USN                        19890717 – 19940215               HON

 Period of Service Under Review :
Date of Enlistment: 19940216             Date of Discharge: 19970725

 Length of Service (years, months, days):

         Active: 03 05 09 (Total service 08 08 08, does not exclude lost time.)
         Inactive: None

 Time Lost During This Period (days):
         Lost time:                441 days (appellate leave)
         Confinement:              52 days (pretrial confinement)

 Age at Entry: 24

 Years Contracted: 3

Education Level: 12                                 AFQT: 67

 Highest Rate: IC2

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.0 (2)              Behavior: 2.5 (2)                 OTA: 3 .05 (2)

 Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214): National Defense Service Medal, Southwest Asia Service Medal, Sea Service Deployment Ribbon, First Good Conduct Award.


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 :

940216:  Reenlisted this date for a term of 3 years.
960215:  NJP for a violation of the UCMJ, Article 112a (wrongful use of controlled substance).
 Award: Forfeiture of $661 per month for 2 months, restriction and extra duty for 45 days, reduction to E-4. No indication of appeal in the record.
960313:  Pre-trial confinement from 960313 to 960502.

960503:  Special Court Martial
          Charge I: Violation of the UCMJ, Article 112a, (2 specifications).
         Specification 1: Wrongfully use marijuana while on board a vessel used by or under the control of the Armed Forces.
Plea: Guilty.
Finding: Guilty.
         Specification 2: Wrongfully posses 7.9 gram of marijuana while on board a vessel used by or under the control of the Armed Forces.
Plea: Guilty, excepting the words “with intent to distribute the controlled substance.” To the excepted words: Not Guilty.
Finding: Guilty, excepting the words “with intent to distribute the controlled substance. To the excepted words: Not Guilty.
          Additional Charge: Violation of the UCMJ, Article 112a: Wrongfully possess marijuana on board USS COMSTOCK.
Plea: Guilty, excepting the words, “on board USS COMSTOCK,” and “while on board a vessel used by, or under control of, the armed forces, to wit: USS COMSTOCK.” To the excepted words: Not Guilty.
Finding: Guilty, excepting the words, “on board USS COMSTOCK,” and “while on board a vessel used by, or under control of, the armed forces, to wit: USS COMSTOCK.” To the excepted words: Not Guilty.
Sentence: Confinement for 3 months, forfeiture of $500 per month for 3 months, reduction to E-1, Bad Conduct discharge.
          CA 960821: The sentence approved and, except for the part of the sentence extending to a bad conduct discharge will be executed. The accused will credited with 51 days of confinement against the sentence adjudged.

970327:  Navy Marine Corps Court of Criminal Appeals: The findings of guilty and the sentence are affirmed.

970512:  Applicant notified of the Navy Marine Corps Court of Criminal Appeals decision and advised of his right to request an appeal to the U. S. Court of Appeals for the Armed Forces.

970723:  Navy Marine Corps Appellate Review Activity, Office of the Judge Advocate General: Based upon the Applicant’s failure to petition for a review, the appellate review is now considered complete.
970725:  Navy Marine Corps Appellate Leave Activity: The Navy Marine Corps Court of Criminal Appeals has affirmed the findings of the Special Court Martial Order No. 6-96, Article 71c, UCMJ, having been complied with, bad conduct discharge will be executed.


PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion
The Applicant was discharged in absentia on 19970725 with a bad conduct discharge which was the sentence adjudged by a properly convened special court-martial. Both the convening and appellate review authorities subsequently approved the sentence (A and B). After a thorough review of all available records, supporting documents, facts, and circumstances unique to this case, the Board found that the Applicant’s issues were insufficient to merit clemency (C).

With respect to a discharge adjudged by a court-martial, 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. The Applicant’s case was considered under the pertinent standards of equity to determine if any factors in this particular case merited clemency. After a thorough review of the Applicant’s record, issues, and post service accomplishments, the Board determined these factors insufficient to mitigate the seriousness of the offenses for which the discharge was awarded. Clemency is not warranted, relief denied.

The Applicant requested an upgrade to the characterization of his service to facilitate his obtaining more favorable employment and the use of educational benefits. There is no requirement or law that grants recharacterization on the issue of obtaining Veterans' benefits and this issue does not serve to provide a foundation upon which the Board can grant relief. Additionally, the Board has no authority to upgrade a discharge for the purpose of enhancing medical, housing, employment or educational opportunities. Regulations limit the Board’s review to a determination on the propriety and equity of the discharge. This issue is without merit. Relief is not warranted.

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, and certification of non-involvement with civil authorities. The Applicant stated that he is employed, pays taxes, votes, and attends church. The Board concluded that the Applicant’s unsubstantiated post service conduct is insufficient to mitigate his misconduct by while in the Naval service. 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 14, effective
03 Oct 96 until 14 Dec 98, 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 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part II, Para 205(2), Jurisdictional Limitations Authority for Review of Discharges.

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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