I could just go back the last 17 yrs and know what I know today I would have save my career and my family the military was my life

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I could just go back the last 17 yrs and know what I know today I would have save my career and my family the military was my life Powered By Docstoc
					                        DEPARTMENT OF THE NAVY
                    NAVAL DISCHARGE REVIEW BOARD (NDRB)
                           DISCHARGE REVIEW
                          DECISIONAL DOCUMENT




                                         ex-FR, USN
                                    Docket No. ND04-00672

Applicant’s Request

The application for discharge review was received on 20040318. The Applicant requests the
characterization of service received at the time of discharge be changed to honorable. The
Applicant requests a documentary record review. The Applicant did not list any representative
on the DD Form 293. In the acknowledge 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 DC, area. Applicant did not respond.

Decision

A documentary review was conducted in Washington, D.C. on 20041008. 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/Convicted by special court martial, authority:
NAVMILPERSMAN, Article 3640420.




The remaining portion of this document is divided into 4 Parts: Part I - Applicant’s Issues and
Documentation, Part II - Summary of Service, Part III – Rationale for Decision and Pertinent
Regulation/Law, Part IV - Information for the Applicant.
Docket No. ND04-00672


                PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

1. “Members of the Board

I came today 3-11-04 ask the Board to up grade my Dis-charge, I was a career man until, I was
court martial in 1988 due to check written to the BX at Mayport Naval Station, due to the fact
that now my ex-wife and I was having problem she left me, and at this time we had a joint
account at the Navy Federal Credit Union, she had drawing all the money from the account and I
had written 900.00 worth of worthless check and had no idea that there was no money in the
account when I find out I tried to correct the problem. She was on crack cocain, and we had a
small child, then and I was young. If, I could just go back the last 17 yrs and know what I know
today I would have save my career and my family the military was my life, every since I was Dis-
charge my life has been on a down hill swing, my daughter is over in Iraq now and I should be
there. This is all the information I have, but it true, and I pray this is enough to change my Dis-
charge to honorable, because I need my benefit from the VA my 1st tour of duty I have a
honorable discharge from the Army, I get hurt in the Navy were I lost all sight in my left eye and
now glaucoma in my right eye from injuries. Thank you for you time it is greatly appreciated.”

Documentation

In addition to the service record, the following additional documentation, submitted by the
Applicant, was considered:

    Letter from Applicant, dated 29 Apr 2004




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Docket No. ND04-00672


                            PART II - SUMMARY OF SERVICE

Prior Service (component, dates of service, type of discharge):

       Inactive: USNR (DEP)          791221 - 800710        COG
                                     860529 - 860902        COG
       Active: USAR                  800711 - 830629        HON

Period of Service Under Review:

Date of Enlistment: 860903           Date of Discharge: 891120

Length of Service (years, months, days):

       Active: 06 02 06
       Inactive: None

Age at Entry: 24                     Years Contracted: 4

Education Level: 12                  AFQT: 37

Highest Rate: HT3 (Frocked)

Final Enlisted Performance Evaluation Averages (number of marks):

Performance: 3.60 (2)         Behavior: 3.50 (2)            OTA: 3.50

Military Decorations: Expert Badge with M-16 Rifle Bar, Expert Badge with Hand Grenade
Bar, Expert Infantrymen Badge

Unit/Campaign/Service Awards: Army Service Ribbon, OSR, Army GCM, HSM

Days of Unauthorized Absence: 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:

880303:        NAVDRUGLAB Jacksonville, FL, reported Applicant’s urine sample, received
               880222, tested positive for cocaine.




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Docket No. ND04-00672

880426:     NJP for violation of UCMJ, Article 86: UA from his organization, to wit: Naval
            Station, Mayport, Florida, violation of UCMJ Article 112a: Wrongful use of a
            controlled substance, to wit: cocaine.
            Award: Forfeiture of $367.00 pay per month for 2 months, restriction and extra
            duty for 30 days, reduction to E-2. No indication of appeal in the record.

880610:     NAVDRUGLAB [Jacksonville, FL], reported Applicant’s urine sample, received
            880524, tested positive for [cocaine].

880711:     CAAC screening evaluation indicates Applicant does not appear to be
            psychologically dependent on drugs, recommended for administrative discharge
            via a VA medical center for treatment, to be place on a command monitored
            urinalysis surveillance program, referred to family service center.

880721:     Positive urinalysis during surveillance testing [Extracted from medical record].

880726:     NJP for violation of UCMJ, Article 86: UA from his organization, to wit: Naval
            Station, Mayport, Florida from 0745, 880719 to 0730, 880720, violation of UCMJ
            Article 86: UA from his organization, to wit: Naval Station, Mayport, Florida
            from 0700, 880722 to 0842, 880722.
            Award: Restriction for 45 days, reduction to E-1. No indication of appeal in the
            record.

880811:     UA from unit 2200, 880811.

880812:     Positive urinalysis during surveillance testing [Extracted from medical record].

880812:     Returned to military control at 0220, 880812.

880816:     Positive urinalysis during surveillance testing [Extracted from medical record].

880921:     Special Court Martial
            Charge I: violation of the UCMJ, Article 112a: Wrongful use of cocaine (date
            unknown); Charge II: violation of the UCMJ, Article 123a (10 Specifications),
            Making, drawing, or uttering check, draft, or orders without sufficient funds.
            Charge III: violation of the UCMJ, Article 134: Breaking restriction on 880811.
            Findings: to Charge I and specification thereunder guilty, to Charge II and
            specifications 1 through 10 thereunder, guilty. To Charge III and the specification
            thereunder, guilty
            Sentence: Confinement for 2 months, forfeiture of $400.00 pay per month for 2
            months, Bad Conduct discharge.
            CA 881122: Sentence approved and, except for that portion of the sentence
            extending to the bad conduct discharge, will be executed, but the execution of that
            portion of the sentence adjudging confinement in excess of thirty days and all
            forfeitures of pay, is hereby suspended for period of 6 months from the date of


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Docket No. ND04-00672

            trial, at which time, unless the suspension is sooner vacated, the suspended
            portions of the sentence will be remitted without further action.

880921:     Joined the Navy Brig, NAS, Jacksonville, Florida, for confinement.

881004:     DAAR indicates cocaine abuse as a result of a unit sweep urinalysis, found not
            dependent, recommended for separation not via VA hospital.

881016:     To Appellate Leave [Extracted from DD Form 214].

890405:     NMCCMR: The findings of guilty and sentence, as approved on review, are
            affirmed.

890822:     SSPCMO: Article 71c, UCMJ, having been complied with, Bad Conduct
            discharge ordered executed.




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Docket No. ND04-00672


  PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19891120 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: Relevant and material facts stated in a court-martial specification, in which the
Applicant was found guilty, 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’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 evidence
of record did not contain sufficient mitigating or extenuating factors to offset the seriousness of
the offenses for which the discharge was awarded. Specifically, the NDRB found that the
Applicant’s service was marred by nonjudical punishment and special court-martial convictions
for violations of Articles 86, 112a, and 123a of the UCMJ. 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 and falls far short of that required for an upgrade of
his characterization of service. Relief denied.

The Veterans Administration determines eligibility for post-service benefits not the Navy 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 Applicant remains eligible for a personal appearance hearing, provided an application is
received, at the NDRB, within 15 years from the date of 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 COURT-MARTIAL.

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 a controlled substance and Article 123a,
making, drawing, or uttering check, draft, or order without sufficient funds.



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Docket No. ND04-00672

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.




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Docket No. ND04-00672


                    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




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Docket No. ND04-00672



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