ex-MSSR, USN
ND06-01085

Current Discharge and Applicant’s Request:

Application Received:  				20060815     
Narrative Reason for Separation:			
Character of Service:				
Discharge Authority:				MILPERSMAN 3640420
Last Duty Assignment/Command at Discharge:	NCB MIRAMAR SAN DIEGO CA

Applicant’s Request:
	Narrative Reason change to:		NONE REQUESTED
	Characterization change to:		
	Review Requested:			
Representation:  					
Issues (as summarized by NDRB):			1.  Trial judge not qualified. 
						2.  Convening Authority did not approve Bad Conduct Discharge.

Decision:

Date of Decision:					20070719
Location of Board:				Washington D.C.
Complete Service Record:				
Complete Medical Record:			
Complete Discharge Package:			

Regarding propriety, the Board found the discharge:	
Regarding equity, the Board found the discharge:	
Regarding BCD, The Board found clemency was: 	

By a vote of  the Characterization shall  .	
By a vote of  the Reason for Discharge shall  CONVICTION BY SPECIAL COURT MARTIAL

Summary of Service:

Prior Service:
Inactive: USNR (DEP)				19891122-19900102 COG
Active:        		               		NONE
Period of Service Under Review:
Date of Enlistment:  				19900103     
Years Contracted:  				     
Date of Discharge:				19921120
Length of Service:				02 Yrs  08  Mos  16  Days
Time Lost During This Period:			52
Days Unauthorized Absence:			NONE     
Days Confinement:				52     

Education Level:  				
Age at this Enlistment:  				
AFQT:  						35
Highest Rate/Rank:				MSSN

Performance Evaluation Averages (number of marks):
Performance:					3.4 (1)
Behavior:					3.2 (1)
OTA:						3.4

Awards and Decorations (as listed on the DD Form 214):
NATIONAL DEFENSE SERVICE MEDAL, SEA SERVICE DEPLOYMENT RIBBON

Service Record Entries Related to Characterization of Service or Narrative Reason for Separation

19900508:	Retention Warning: Notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

19910218:	NJP for violation of UCMJ:
	Article 128: Simple Assault on 19910208.
	Award:  30 days Correctional Custody Unit.
	No indication of appeal in the record.

19910218:	Retention Warning:  Advised of deficiency (Violation UCMJ Article 28 on 19910208), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

19911101:	NJP for violation of UCMJ:
	Article 92: Failure to obey order on 19911031.
	Award:  Forfeiture of $439.00 for 1 month, restriction and extra duty for 30 days (10 days restriction and extra duty suspended for 6 months), reduction to E-2 (suspended for 6 months).
	No indication of appeal in the record.

19920127:	Applicant to confinement at Miramar Brig.

19920111:	Special Court-Martial.
	Charge I: Violation of the UCMJ, Article 121.
	Specification: Larceny and wrongful appropriation of a value of about $1,269.24 between 19910718 and 19910730.  Plea: Guilty.  Findings: Guilty.
	Charge II: violation of the UCMJ, Article 134 (2 specifications)
	Specification 1: With intent to defraud, did wrongfully obtain telephone services of a value of about $10.15 on or about 19910725.   Plea: Guilty.  Findings: Guilty.
	Specification 2: Steal certain mail matter on or about 199107. Plea: Guilty.  Findings: Guilty 
 	Finding: To Charge and the specification thereunder, guilty.
	Sentence: Confinement for 4 months, forfeiture of $523.00 for 4 months, , reduction to E-1.
	CA action 19929312:  Sentence approved and, except for that part of the sentence extending to a Bad Conduct Discharge, will be executed, but the execution of that part of the sentence extending to confinement in excess of 75 days is suspended for 12 months from the date of trial, at which time, unless the suspension is sooner vacated, the suspended part of the sentence will be remitted without further action.

19920318:	Applicant from confinement (52 days).

19920818:	U. S. Navy-Marine Corps Court of Military Review, approved both the findings and the sentence of the Applicant’s Special Court-Martial case of 19920111.  The reviewing court considered the Appellant’s claim that the Court-Martial lacked proper jurisdiction by commenting, “...that no error prejudicial to the substantial rights of the appellant was committed.  The appellant’s assignments of error are without merit”.

19921120:	Special Court Martial Convening Authority ordered Bad Conduct Discharge executed.

Elements of Discharge:  [BCD]

Record of Trial Complete:				
Date Charges Preferred:				19911223
Date Charges Referred to Special Court-Martial:	19911224
Trial Date:					19920111
Applicant requested BCD:				
Date Applicant to Confinement:			19920127
Date Applicant from Confinement:			19920318
Date Applicant to Voluntary Appellate Leave:	19920406
NMCCA Action and Date:				Affirmed findings and sentence on 19920818
Date Appellate Review Complete:			19921104
Date of SSPCMO ordering BCD be executed:	19921120
Date Applicant Discharged:			19921120

Additional Information Considered by Board

Type of documentation submitted by the Applicant and considered by the Board
       
       	Document Type					#Pages
       Related to Period of Service Under Review:
	Service/Medical Record:				2     
	Other Period of Service:				0     
       Related to Post-Service Period:
	Community Service:				0     
	Education:					0     
	Employment:					0     
	Health/Medical:					0     
	Character Statements:				0     
	Criminal Records Checks:				0     
	Additional Statements from Applicant:		0     
        Other Documentation	 (Describe Below)		0     

        Total Number of Pages:				2     

Discussion

 either  which the Board cannot form the basis of relief for the Applicant, or  the Board does not have the authority to grant the relief for which the Applicant petitioned.  The Applicant is directed to the Addendum regarding .  

Issue 1 (The trial judge was not qualified, Propriety):  This matter was reviewed by the U. S. Navy-Marine Corps Court of Military Review on 19920818.  The NDRB has no authority on this matter.

Issue 2 (The convening authority did not approve the bad conduct discharge).  The convening authority did approve the bad conduct discharge on 19921120, once the appeal and review process was completed.  This issue is without merit.

Decisional Issues:

For the information 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.  After a thorough review of the available evidence, to include the Applicant’s Summary of Service, Service Record Entries, Medical Record Entries, Elements of Discharge and evidence submitted by the Applicant, 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.  

Pertinent Regulation/Law

A.  Naval Military Personnel Manual, (NAVPERS 15560C), effective 15 Aug 91 until 04 Mar 93, Article 3640420, DISCHARGE OF ENLISTED PERSONNEL ADJUDGED BY SENTENCE OF COURT‑MARTIAL.

B.  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 V, Para 502, Propriety and Para 503, Equity.

C.  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, Articles 128 and 134.

ADDENDUM:  Information for the Applicant

Complaint Procedures:  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 Instruction 1332.28, you may submit a complaint in accordance with Enclosure (5) of that Instruction.  You should read Enclosure (5) of the Instruction 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 Instruction 1332.28 and other Decisional Documents by going online at “http://Boards.law.af.mil”.

Additional Reviews:  Subsequent to a document review, former members are eligible for a personal appearance hearing, provided the 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.  If a former member has been discharged for more than 15 years, has already been granted a personal appearance hearing or has otherwise exhausted his opportunities before the NDRB, the Applicant may petition the Board for Correction of Naval Records (BCNR), 2 Navy Annex, Washington, DC 20370-5100 for further review.

Service 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.

Employment/ Educational Opportunities:  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 of the propriety and equity of the discharge.  

Reenlistment/ RE-code:  Since the NDRB has no jurisdiction over reenlistment, reentry, or reinstatement into the Navy, Marine Corps, or any other of the Armed Forces, the NDRB is not authorized to change a reenlistment code.  Only the Board for Correction of Naval Records (BCNR) can make changes to reenlistment codes.  Additionally, the Board has no authority to upgrade a discharge for the sole purpose of enhancing reenlistment opportunities.  An unfavorable “RE” code is, in itself, not a bar to reenlistment.  A request for a waiver can be submitted during the processing of a formal application for reenlistment through a recruiter.

Medical Conditions and Misconduct:  DoD disability regulations do not preclude a disciplinary separation.  Appropriate regulations stipulate that separations for misconduct take precedence over potential separations for other reasons.  Whenever a member is being processed through the Physical Evaluation Board, and subsequently is processed for an administrative involuntary separation for misconduct, the disability evaluation is suspended.  The Physical Evaluation Board case remains in suspense pending the outcome of the non-disability proceedings.  If the action includes either a punitive or administrative discharge for misconduct, the medical board report is filed in the member’s terminated health record.  Additionally, the NDRB does not have the authority to change a narrative reason for separation to one indicating a medical disability or “PTSD.”  Only the Board for Correction of Naval Records can grant this type of narrative reason change.  

Automatic Upgrades - 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 may 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.  

Issues Concerning Bad-Conduct Discharges (BCD) – Because relevant and material facts stated in a court-martial specification are presumed by the NDRB to be established facts, issues relating to the Applicant’s innocence of charges for which he was found guilty cannot form a basis for relief.  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.  

Board Membership:  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