ex-BTFR, USN
ND06-01141

Current Discharge and Applicant’s Request:

Application Received:  				20060829
Characterization of Service:			
Narrative Reason for Separation:			 CONVICTION
Discharge Authority:				MILPERSMAN 3640420
Last Duty Assignment/Command at Discharge:	TPU NAVAL STATION, SAN DIEGO, CA

Applicant’s Request:	
	Characterization change to:		
	Narrative Reason change to: 		
	Review Requested:			
Representation:  					

Decision:

Date of Decision:					20070727
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:	
 (BCD only) The Board found that clemency was: 	

By a vote of  the Characterization shall  .	
By a vote of  the Narrative Reason shall   - CONVICTION.

Applicant’s Issues as Summarized by the Board:

1. Quality of Service – Equity
2. Post Service - Equity  

Summary of Service:

Prior Service:
Inactive: USNR (DEP)				19910717 - 19920309 
Active:   NONE
Period of Service Under Review:
Date of Enlistment:  				19920310
Years Contracted:  				;  
Date of Discharge:				19960710
Length of Service:				04  Yrs  04  Mos  01  Days
Time Lost During This Period:			
Days Unauthorized Absence:			194
Days Confinement:				NONE

Education Level:  				
Age at this Enlistment:  				
AFQT:  						78
Highest Rate/Rank:				BT3

Performance Evaluation Averages (number of marks):
Performance:					3.4 (5)
Behavior:					3.4 (5)
OTA:						3.28

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

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

19930920:	Retention Warning:  Advised of deficiency (Indebtedness complaints from lack of payment of an auto accident in which you were liable for damages of $702.15.   Any further delinquency in payment of these damages will result in disciplinary action.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

19931012:	Retention Warning:  Advised of deficiency (You have been diagnosed by a Medical Officer as having adjustment disorder with mixed emotional features.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

19940926:	Applicant to unauthorized absence.  Intention unknown

19941025:	Applicant declared a deserter. [Extracted from (19950214) report of declaration of Deserter]

19950408:	Applicant from unauthorized absence (Apprehended) (194 days u/a)

19950515:	Charges preferred for violation of the Uniform Code of Military Justice (UCMJ) Article 85:  Did, on or about 19940926, without authority and with intent to remain away therefrom permanently, absent himself from his unit, to wit:  USS TARAWA, located at Long Beach, California, and did remain so absent in desertion until he was apprehended on or about 19950408

19950515:	Charges referred to special court-martial.

19950615:	Special Court-Martial.
	Charge: Violation of the UCMJ, Article 85.
	Specification:  On or about 19940926 without authority and with intent to remain away permanently absent himself from his unit and did remain so absent in desertion until he was apprehended on 19950308.  Plea:  Guilty except for the words “and with intent to remain away therefrom permanently” and “in desertion.”  To the excepted words, Not Guilty.  Findings: Guilty except for the words “and with intent to remain away therefrom permanently” and “in desertion.”  Of the excepted words, Not Guilty.
	Finding: To Charge and the specification thereunder, Not Guilty, but to the lesser included offense of Article 86, Guilty.
	Sentence: Forfeiture of $500.00 for 2 months, confinement for 30 days, and reduction to E-1, and to be discharge with a bad conduct discharge.
	CA action 19950920:  Sentence approved and, except for the 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 for 30 days is suspended for 12 months from the date of the trial, at which time, unless the suspension is sooner vacated, the suspended part of the sentence will be remitted without further action.

Elements of Discharge:  [BCD]

Record of Trial Complete:				
Date Charges Preferred:				19950515
Date Charges Referred to Special Court-Martial:	19950515
Trial Date:					19950615
Applicant requested BCD:				
Length of BCD Suspension:			
Date Applicant to Voluntary Appellate Leave:	19950616
NMCCA Action and Date:				Affirmed findings and sentence on 19960419
Date Appellate Review Complete:			19960709
Date of SSPCMO ordering BCD be executed:	19960710
Date Applicant Discharged:			19960710

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:				37
	Other Period of Service:				0
       Related to Post-Service Period:
	Community Service:				0
	Education:					9
	Employment:					3
	Health/Medical:					0
	Character Statements:				2
	Criminal Records Checks:				0
	Additional Statements from Applicant:		0
        Other Documentation	 (Describe Below)		0

        Total Number of Pages:				51

 Discussion:

Decisional Issues:

Issue 1 ().  The Applicant contends his discharge was based on one isolated incident in 40 months of service.  When the service of a member of the U.S. Navy has been honest and faithful, it is appropriate to characterize that service as honorable.  A Bad Conduct discharge is warranted when significant negative aspects of a member’s conduct or performance of duty outweigh the positive aspects of the member’s military record.  The Applicant’s service was marred by 2 retention warnings and one Special Courts-Martial for violation of UCMJ Article 85 (desertion).  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.

Issue 2 ().  Normally, to permit relief, a procedural impropriety or inequity must have occurred during the discharge process for the period of enlistment in question.  The Board discovered no impropriety after a review of the Applicant’s case.  There is no law or regulation, which provided 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 could be provided to the Board include verifiable employment records, documentation of community service, educational pursuits, credible evidence of a substance free lifestyle and certification of no involvement with civil authorities.  As of this time the Applicant has not provided sufficient post service documentation to consider mitigating the misconduct that resulted in the characterization if discharge.  Relief denied.

In reviewing discharges, the Board presumes regularity in the conduct of Government affairs unless there is substantial credible evidence to rebut the presumption, to include evidence submitted by the Applicant.  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 found the Applicant’s discharge proper and equitable.

Pertinent Regulation/Law

A.  Naval Military Personnel Manual, (NAVPERS 15560C), Change 5, effective 05 March 1993 until 02 October 1996, 
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, Article 85 (Desertion).  

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