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NAVY | DRB | 2005_Navy | ND0500780
Original file (ND0500780.rtf) Auto-classification: Denied


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

FOR OFFICIAL USE ONLY

ex-AR, USN
Docket No. ND05-00780

Applicant’s Request
The application for discharge review was received on 20050330. The Applicant requests the Discharge Characterization of Service received at the time of discharge be changed to honorable. The Applicant requests a documentary record discharge review. The Applicant designated Wisconsin Department of Veterans Affairs as the representative on the DD Form 293. In the acknowledgement letter, the Applicant was informed that he was approaching the 15-year point for review by this Board and was encouraged to attend a personal appearance hearing in the Washington D.C. area or Washington, D.C. Metropolitan area. Subsequent to the application the Applicant elected a personal appearance hearing and changed his representation to a civilian attorney.

Decision

A personal appearance discharge review was conducted in Washington, D.C. on 20060410. 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 as a bad conduct discharge by reason of court-martial conviction.





BCD8912 - THIS IS THE CORRECT SHELL FOR A BCD FOR THE PERIOD
14 DEC 89 UNTIL 14 AUG 91, MILPERSMAN Article 3640420, SPN CODES:
CODE - Narrative Reason for separation.
JJB - Convicted of homosexuality by special or general court martial
JJC - Convicted of desertion by special or general court martial
JJD - Convicted by special or general court martial


PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

 Applicant’s issues, as stated on the application:

“The Veterans should have issued an Honorable Discharge under Medical Conditions. The Veteran was diagnosed with Multiple Sclerosis and the Medical Reports state “That he (The Veteran) definitely did have the onset of MS prior to his discharge of 10 May 90”.”
Additional issues submitted by Applicant’s counsel/representative ( Veterans of Foreign Wars, Disabled American Veterans, American Legion, private representative, civilian counsel ):

“XXXXXXXXXXXXXXXXXXXXX.”

 Issues submitted by Applicant’s counsel/representative ( Veterans of Foreign Wars, Disabled American Veterans, American Legion, private representative, civilian counsel ):
“XXXXXXXXXXXXXXXXXXXXXX.”
Documentation
In addition to the service and medical records, the following additional documentation, submitted by the Applicant, was considered:
Letter from Dr. B_ R. B_, MD, University of Wisconsin Hospital and Clinics, dtd February
18, 2005
Letter from Mrs. J_M_S_ dtd September 28, 2004
Article entitled “Early Brain Changes in MS”, dtd September 28, 2004 (2 pages)
Letter from Applicant, dtd May 6, 2005
 Applicant Business card
 Character reference letter from Professor H_ C_, PhD, Richmond University, dtd October 14, 2005
Character reference letter from C_ M_, AMVETS, National Headquarters, dtd February 15, 2006
Clinical notes on Applicant from University of Wisconsin Hospitals and clinics, dtd January 25, 2006
 Character reference letter from J_ H_, Mayor Beaver Dam, dtd April 4, 2006
 Character reference letter from M_ R. S_, Rev. April 9, 2006
Letter from Midland Psychological Associates providing interpretation of Applicant’s intelligence test dtd July 14, 2005
 Character reference letter from G_ G_ dtd September 1, 2005
 Character reference letter from G_ H_, dtd September 15, 2005
 Character reference letter from E_ L_, dtd August 4,2005
 Character reference letter from R_ T_, dtd July 28, 2005
 Character reference letter from P_ K_, dtd August 22,2005
 Character reference letter from W_ E_, dtd September 2, 2005
Information from Applicants political Website (10 pages)
 Applicant Declaration of candidacy form, dtd June 8, 2005

 PART II - SUMMARY OF SERVICE

Prior Service (component, dates of service, type of discharge):
         Active: USMC              199771205- 19780210      HON
         Inactive: USNR (DEP)     19870728 – 19870927      COG

 Period of Service Under Review :
Date of Enlistment: 19870928             Date of Discharge: 19900510

 Length of Service (years, months, days):

         Active: 02 07 12 (Does not exclude lost time.)
         Inactive: None

 Time Lost During This Period (days):

         Unauthorized absence: 392 days
         Confinement:              36 days

 Age at Entry: 26

 Years Contracted: 4

 Education Level: 10 (GED)                          AFQT: 86

 Highest Rate: AA

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.0 (1)                       Behavior: 3.0 (1)                 OTA: 3 .00

 Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214): None


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 :

870602:  Applicant signs drug and alcohol abuse statement of understanding

 880328:  NJP for violation of UCMJ, Article 86: UA fm appt place of duty on 16MAR88.
 Violation of UCMJ, Article 134: Drunkenness – incapacitation for performance of duties on 16MAR88.
          Award: Forfeiture of $156 per month for 1 month, restriction for 7 days. No indication of appeal in the record.

 880802:  Applicant to unauthorized absence at 0500 on 880802.

 880805:  Applicant from unauthorized absence at 0845 on 880805 (3 days/surrendered).
880906:  Applicant to unauthorized absence at 0645 on 880906.

 881011:  Report of Declaration of Deserter. Applicant declared a deserter on 881011 having been an unauthorized absentee since 0645, 880906 from USS OKINAWA (LPH-3).

 890123:  Applicant from unauthorized absence at 1120 on 890123 (139 days/surrendered).
890123:  Report of Return of Deserter. Applicant surrendered to military authorities on 890123 (1120) at TPU San Diego, CA. Returned to military control 890123 (1120).

890125:  Applicant issued Technical Arrest Order (TAO) to report to USS OKINAWA. Applicant failed to report as directed under TAO. [Extracted from message from USS OKINAWA dated 890419.]

 890125:  Applicant to unauthorized absence at 1901 on 890125.




890316:  Report of Declaration of Deserter. Applicant declared a deserter on 890316 having been an unauthorized absentee since 1901, 890125 from USS OKINAWA (LPH-3). Applicant was issued TAO to report to USS OKINAWA on 890125. Applicant failed to report as directed under TAO.

890411:  Applicant from unauthorized absence at 1710 on 890411 (76 days/surrendered).

 890412:  Report of Return of Deserter. Applicant surrendered to military control on 890411 (1710) at Puget Sound Naval Shipyard. Returned to military control 890411 (1710). Applicant was issued TAO to report to USS OKINAWA. Applicant failed to report as directed under TAO.

890412:  Applicant to unauthorized absence at 2100 on 890412.
890419:  Report of Declaration of Deserter. Applicant declared a deserter on 890412 having been an unauthorized absentee since 2100, 890412 from USS OKINAWA (LPH-3).

890515:  Drug and Alcohol Abuse Report: Marijuana abuse. Report contained findings on a consensual urinalysis 880805. Present location of member: Deserter.
891003:  Applicant from unauthorized absence at 1930 on 891003 (174 days/surrendered).
891009:  Charges preferred for violation of the Uniform Code of Military Justice (UCMJ) Article 86 (4 specs): (1) Unauthorized absence from 880802 to 880805, (2) Unauthorized absence from 880906 to 890123, (3) Unauthorized absence from 890125 to 890411, (4) Unauthorized absence from 890412 to 891003, and Article 112a: Wrongful use of marijuana on 880829.

 891009:  Applicant to pre-trial confinement.

 891012:  Charges referred to special court-martial.

 891109:  Applicant released for trial.

891109:  Special Court Martial:
         Charge I: violation of the UCMJ, Article 86 (4 specifications).
         Specification 1: Unauthorized absence from his unit from 2 August 1988 unil 5 August 1988. Plea : Guilty. Finding : Guilty.
         Specification 2: Unauthorized absence from his unit from 6 September 1989 until 23 January 1989. Plea : Guilty. Finding : Guilty.
         Specification 3: Unauthorized absence from his unit from 25 January 1989 until 11 April 1989. Plea : Guilty. Finding : Guilty.
          Specification 4: Unauthorized absence from his unit from 12 April 1989 until 3 October 1989. Plea: Guilty. Finding: Guilty.
          Charge II: violation of UMCJ, Article 112A.
         Specification: Wrongfully used marijuana at or near Portland, OR on 29 August 1988. Plea: Guilty. Finding: Guilty.
         Sentence: Confinement for 45 days, reduction to E-1, Bad Conduct discharge.
         CA 891228: The sentence approved and ordered executed, except for bad conduct discharge.
         SA: see SSPCMO.

891109:  Joined U.S. Navy Brig, San Diego, CA, for confinement.

891115:  From confinement and restored to full duty.

891115:  Applicant request for appellate leave.

900129:  NMCCMR: The findings of guilty and sentence, as approved on review, are affirmed.

 900501:  NC&PB clemency not granted; restoration denied.

 900510:  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 19900510 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). After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, the Board found that the Applicant’s issues were insufficient to merit clemency (C).

For the edification of the Applicant, relevant and material facts stated in a court-martial specification are presumed by the NDRB to be established facts. 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.

The Applicant contends that he should have received an honorable discharge with medical condition as the narrative reason. SECNAVINST 1850.4 stipulates that separation for misconduct takes precedence over potential separations for other reasons. The Applicant's misconduct is clearly documented. The Applicant was charged at a special court martial for violation of the UCMJ, Article 86 (4 specifications totaling 392 days) and violation of UCMJ, Article 112A(wrongful use of a controlled substance).
 The evidence of record does not show that the Applicant should not be held accountable for his actions. In fact, the NDRB sees no connection between the Applicant’s misconduct and his current medical condition. No impropriety or inequity, clemency not warranted.

Further, the record shows competent medical authority (CDR A_ B. C_ MD) from Naval Station San Diego Clinic examined the Applicant for a separation physical on 19891114 and the Applicant was cleared for discharge with the documented statement “no special care needed”. The Board also noted that the Applicant passed all previous physicals (19870622 &19880216) and annotated each form with the statement “I am in good health or I am in very good health”. No impropriety or inequity, clemency not warranted.

The Applicant requests that the Board consider his post-service conduct in assessing the merits of his application. The NDRB is authorized to consider post-service factors in the recharacterization of a discharge. However, 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 the civilian life subsequent to leaving the service. Normally, to permit relief, a procedural impropriety or inequity must have been found to exist during the period of enlistment in question. 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, is considered. The Applicant provided a business card, 10 c haracter reference letters, clinical notes from University of Wisconsin Hospitals and Clinics, a letter from Midland Psychological Associates, information from his political website, and his declaration of candidacy form as documentation of his post-service. The board acknowledges the Applicants considerable post service accomplishments, however at the personal appearance hearing, the Applicant acknowledged at least one bankruptcy and in response to questioning concerning his involvement with the law, the applicant admitted to two instances of driving under the influence. At this time, the Applicant has not provided sufficient documentation of post service character and conduct to mitigate the misconduct that resulted in his characterization of discharge. Therefore, relief on the basis of post service is unwarranted.

The following is provided for the edification of the Applicant, during your testimony you stated the motivation for your upgrade was to obtain your disability benefits. The Veterans Administration determines eligibility for post-service benefits not the Naval Discharge Review Board. 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. Additionally, the Board has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities. Regulations limit the Board’s review to a determination on the propriety and equity of the discharge.

The NDRB advises the Applicant that he has exhausted his opportunities for review by the NDRB. The Applicant may, however, petition the Board for Correction of Naval Records (BCNR), 2 Navy Annex, Washington, DC 20370-5100, concerning a change in the characterization of naval service, if he desires further review of his case.







Pertinent Regulation/Law (at time of discharge)

A. The Naval Military Personnel Manual, (NAVPERS 15560A), Change 9, effective 14 Dec 89 until 14 Aug 91, 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 86- unauthorized absence for more than 30 days) and 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, 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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