ex-MMFR, USN
ND07-00056

Current Discharge and Applicant’s Request:

Application Received:  				20061012
	Characterization of Service:		
	Reason for Discharge:			COURT-MARTIAL CONVICTION
	Discharge Authority:			MILPERSMAN 3640420
	Duty Assignment/Command at Discharge:	TPU SAN FRANCISCO, CA

Applicant’s Request:	
	Characterization change to:		
	Narrative Reason change to: 		
	Review Requested:			
	Representation:				VETERANS SERVICE OFFICE, fayetteville, N. C. 
	Issues (as summarized by NDRB):		1.  Benefits

Decision:

By a vote of  the Characterization shall   .	
By a vote of  the Reason for Discharge shall  Court Martial Conviction.

Date of Decision:					20070823
Location of Board:				Washington D.C.
Complete Service Record:				
Complete Medical Record:			
Complete Discharge Package:			

The Board found clemency was: 	

Discussion

Issue 1:   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.  

Decisional Issues:

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. 

Summary of Service:

Prior Service:
Inactive: USNR (DEP)				19900105 – 19900407  
Active:   										

Period of Service Under Review:
Date of Enlistment:  				19900408
Years Contracted:  				
Date of Discharge:				19940929
Length of Service
	Active:					04 Yrs 05 Mths 28 Dys (does not exclude lost time)
	Time Lost During This Period:		Appellate leave:  19921125 – 19940929

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

Performance Evaluation Averages (number of marks):
						Performance: N/A Behavior: 3.6 (1) OTA: N/A

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

Service Record Entries Related to Characterization of Service or Reason for Discharge

19901121:	NJP for violations of UCMJ:
	Article 117: Wrongfully use reproachful words toward another military member on 19900921. 
	Article 92: Fail to obey a lawful order by going on liberty without a liberty pass on 19901104.
	Article 128: Grabbing a military member by belt & groin on 19900921.
	Article 134: Threaten sexual assault upon another on 19900921.
	Award:  Forfeiture of $150.00 for 1 month, restriction to SSC BEQ and extra duty for 14 days.
	
19901121:	Retention Warning:  Advised of deficiency (poor military performance, by wrongfully using reproachful words, wrongfully going on liberty without your armed forces liberty pass, by assaulting another service member, by wrongfully communicating  a threat to sexually assault another service member), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

19910102:  	Applicant reported for duty aboard USS WILLAMETTE (AO-180).

19910905:	NJP for violation of UCMJ:
	Article 86:  Absent from place of duty, 19910903 (EMI with XO).
	Award:  RIR (suspended 6 months), restriction and extra duty for 30 days.

19911010:	Reduction in pay grade awarded at NJP on 19910905 vacated due to continued misconduct.

19911010:	NJP for violations of UCMJ:
	Article 91: Insubordinate conduct toward warrant officer, noncommissioned officer, or petty officer.
	Article 134: Communicating a threat. 
	Award:  Restriction to the ship and extra duty for 45 days.  Pending administrative separation.
	
19911010:	Retention Warning:  Advised of deficiency (misconduct in the performance of duties), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

19920214:	NJP for violations of UCMJ:
	Article 86: Without authority, absent himself from his place of duty.
	Article 92: Failure to obey lawful order.
	Award:  Forfeiture of $300.00 for 2 months, restriction to the ship and extra duty for 40 days.
	
19920215:	NJP for violation of UCMJ:
	Article 91: Disobeyed a lawful order.
	Award:  3 days confinement with bread and water.
	No indication of appeal in the record.

19920827:	Commander Naval Surface Group MIDPAC set aside the Summary Court-Martial conviction of 19920710.

19921005:	Administrative board found by unanimous vote that a preponderance of the evidence supported the misconduct due to a pattern of misconduct and due to the commission of a serious offense.  Furthermore, the board unanimously recommended the Applicants separation and that his service be characterized as “under other than honorable conditions”.

19921109:	Commanding Officer, USS WILLAMETTE (AO-180) recommended to Chief of Naval Operations the Applicant be administratively discharged by reason of misconduct due to a pattern of misconduct and the commission of a serious offense with a service characterization of “under other than honorable conditions”.   

19921109:	Charges preferred to for violation of UCMJ Articles 112a (wrongful use of a controlled substance) and 121 (larceny).

19921117:	BUPERS authorized Applicants discharge as a result of misconduct due to the commission of a serious offense with a service characterization of “under other than honorable conditions”.

19921125:	Found guilty by Special Court-Martial for violation of UCMJ Article 121 (larceny). 
	Award:  Confinement for 30 days, FOP $520/mo for 3 months and Bad Conduct Discharge.

Elements of Discharge:  [Bad Conduct Discharge]

Date Charges Preferred:				19921109
Charges and Specification:
	Article 112a: Did on or about 19921009 wrongfully use a controlled substance, to wit: marijuana.
	Article 121: On or about 19920905, steal a cellular telephone of a value of about $900.00 the property of D_ R. D_. 
Court-martial Date:				19921125
Findings:					Guilty of Articles 121
Applicant requested Bad Conduct Discharge:	
Sentence:					BAD CONDUCT DISCHARGE
	Confinement:				3 months
	Reduction:				NONE
	Forfeiture:				$520.00 pay for 3 month
Date of Convening Authority action			19930104
Date Appellate Review Complete:			19930811
Date BCD ordered executed:			19940929 SSPCMCO No. 94-1027
Date Applicant Discharged:			19940929

Additional Documents Submitted by Applicant and Considered By Board

Total Number of Pages:				49
       
Related to Period of Service Under Review:
	From Service and/or Medical Record:		Other Records:	

Related to Other Period(s) of Service:
	From Service and/or Medical Record:		Other Records:	
       
Related to Post-Service Period:
	Employment:					Finances:	
	Health/Medical Records:				Substance Abuse:	
	Family/Personal Status:				Education:	
 	Community Service Efforts:			References:	
	Criminal Records:			

Other:
	Additional Statements From Applicant:		From Representative:	
        	Other Documentation (Describe)		   Statement in support of claim from Dept of Veterans Affairs

Pertinent Regulation/Law

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 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 121 (larceny).

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