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NAVY | DRB | 2005_Navy | ND0501338
Original file (ND0501338.rtf) Auto-classification: Denied


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

ex-FR, USN
Docket No. ND05-01338

Applicant’s Request
The application for discharge review was received on 20050802. 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 did not designate a representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20060413. 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.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION


Issues, as stated

 Applicant’s issues, as stated on the attached document/letter:

“I want to thank the United States Navy for giving me the opportunity to travel and to see the world at such a young age, also for giving me my first duty station with my sister. When I left home to join the navy I was 17 yrs Old. I was and still am the type of person who love people and love to have a good time. The navy provided all that and more. I apologize for the bad choices that I made. My bad choices have destroyed my naval career. Because of what’s on my DD 214 my job opportunities are very limited, preventing me from acquiring a job that pays enough money to support my two sons for over ten years. There contributing factors that lead to the bad choices that I made while serving in the United States Navy. I remember being under a lot of pressure and feeling stressed while working aboard ship and being underway. Please consider my good service and grant my upgrade.

Respectfully, [signed] R_ R_ “(Applicant)
Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant’s DD Form 214
Applicant’s DD Form 215
Letter from Applicant dtd July 26, 2005
Letter from Applicant dtd April 5, 2006
Response Letter from the National Personnel Records Center dtd July 1, 2005
Letters from Applicant to Assistant Judge Advocate General (Military Law) dtd    November 16, 2005 (2)
Request for Military Records dtd November 15, 2005 (2)
Information regarding the location of Court Martial records (2)

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     19890918 – 19890928               COG
         Active: None

 Period of Service Under Review :
Date of Enlistment: 19890929             Date of Discharge: 19941007

 Length of Service (years, months, days):

         Active: 04 11 19
         Inactive: None

 Time Lost During This Period (days):
         Unauthorized absence: none
         Confinement:              19 days

 Age at Entry: 18

Years Contracted: 4

Education Level: 12                                 AFQT: 31

 Highest Rate: FN

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.6 (2)              Behavior: 3.7 (2)                 OTA: 3. 60

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


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 :

891004:  Applicant briefed on Navy's policy of drug and alcohol abuse.

900413:  Commanding Officer, USS PROTEUS (AS 19). Applicant briefed on Navy’s drug and alcohol abuse policy as set forth in OPNAVINST 5350. Applicant also briefed on drug and alcohol abuse as set forth in PROTEUSINST 5355.1E.
921119:  NJP for violation of UCMJ, Article 112a: Did, on or about 921030, wrongfully use cocaine.
         Violation of UCMJ, Article 112a: Did, on or about 921105, wrongfully use cocaine.
         Award: Forfeiture of $440.00 per month for 2 months, 45 days restriction to USS SAMUEL GOMPERS (AD 37), 45 days extra duty, reduction to E-2. No indication of appeal in the record.
930519:  Special Court Martial:
         Charge I: violation of the UCMJ, Article 112a, (2 specifications).
         Specification 1: Wrongfully use of marijuana. Plea : Guilty. Findings : Guilty*.
         Specification 2: Wrongfully use cocaine. Plea : Guilty. Findings : Guilty*.
         *Specification 1 and 2 combined into a single specification as follow: “In that Fireman Apprentice R_ A. R_, U.S. Navy, Transient Personnel Unit, Naval Station Treasure Island, San Francisco, California, on active duty, did, on or about 25 March 1993, wrongfully use marijuana and cocaine”.
          Sentence: Confinement for 25 days, reduction to E-1, Bad Conduct discharge.
          CA 930614: The sentence is approved, and except for that portion extending to a bad conduct discharge, will be executed
.
930519:  Joined Naval Brig, Naval Station Treasure Island, San Francisco, California, for confinement [Date extracted from DD Form 214].

930607:  From confinement, restored to full duty [Date extracted from DD Form 214].

930729:  NC&PB clemency not granted; restoration denied.

 931105:  NMCCMR : The findings of guilty and sentence, as approved on review,
         are affirmed.

940928:  Appellate review complete.
941007:  SSPCMO: Article 71c, UCMJ, having been complied with, Bad Conduct discharge ordered executed.

         The Special Court-Martial Record of Trail is missing the urinalysis message(s).

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion
The Applicant was discharged on 19941007 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 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). The Board presumed regularity in the conduct of governmental affairs (D).
In response to the Applicant’s issue, 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. After a thorough review of the Applicant’s record, issues submitted, and post service accomplishments, the Board determined that clemency was not warranted and that the sentence awarded the Applicant at his court-martial was appropriate for the offenses he committed. 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 additional evidence related to this discharge. 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, possession, etc. of controlled substances.
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 .

D. Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part II, Para 211, Regularity of Government Affairs.

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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