ex-AN, USN
ND07-00105

Current Discharge and Applicant’s Request

Application Received:  20061031	           Characterization received:  
Narrative Reason:  IN LIEU OF TRIAL BY COURT-MARTIAL 	     Authority:  MILPERSMAN 1910-106

Applicant’s Request:	Characterization change to:  
			Narrative Reason change to: 
Applicant’s Issues:	1. Entrapped into committing offense
			2. Inadequate representation
			3. Post-service conduct

Decision

By a vote of  the Characterization shall  .	
By a vote of  the Narrative Reason shall  IN LIEU OF TRIAL BY COURT-MARTIAL.

Date:  20071011  	   		    Location:  Washington D.C. 	

Discussion

Issue 1 ().  The Applicant contends that he was pressured for six weeks by an, unbeknownst to him, cooperating witness who finally broke down his resistance to attempting to purchase Ecstacy.  The record demonstrates that the Applicant had the opportunity to defend himself at trial by court-martial, but chose to not do so.  In so choosing, the record also demonstrates that the Applicant had the opportunity to review the evidence against him, discuss that evidence and his options with detailed defense counsel, and admitted guilt to the charge against him in order to avoid such a trial.  The Applicant explicitly acknowledged the likelihood and consequences of an administrative discharge in lieu of trial by court-martial with a characterization of service as under other than honorable conditions.  The Applicant’s uncorroborated assertions of entrapment do not overcome the plain evidence of record that demonstrate that the his discharge was proper and equitable.

Issue 2 ().  The Applicant contends that he was inadequately represented, although he does not indicate in what manner his representation was inadequate.  This contention is in direct conflict with his written acknowledgement, made at the time he requested administrative separation in lieu of trial by court-martial, that he was satisfied with his counsel in all respects.  Nothing in the record provides a scintilla of evidence suggesting that the Applicant’s counsel did not competently act in his best interests.

Issue 3 ().  There is credible evidence in the record, to include his own admission, that the Applicant abused illegal drugs.  Separation under these conditions generally results in characterization of service under other than honorable conditions.  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 or inequity after a review of Applicant’s case.  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 could 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.  As of this time, the Applicant has not provided sufficient post-service documentation to consider mitigating the misconduct that resulted in the characterization of service.  

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, Medical and Service Record Entries, Discharge Process and evidence submitted by the Applicant, the Board found that 

Summary of Service

Prior Service:
Inactive: USNR (DEP)	20020226 - 20020625  		Active:   	
Period of Service Under Review:
Date of Enlistment: 20020626	Years Contracted:  ; Extension:    	Date of Discharge:  20051019
Length of Service:  03  Yrs  03  Mths  24  Dys	Lost Time:  Days UA:    Days Confined:  
Education Level:  	Age at Enlistment:  	AFQT:  35	Highest Rank/Rate:  AN
Evaluation marks (# of occasions):	Performance:  2.7(4)	Behavior:  2.5(4)		 OTA:  2.91 
Awards and Decorations (per DD 214):  NATIONAL DEFENSE SERVICE MEDAL, ARMED FORCES EXPEDITIONARY MEDAL, GWOT SERVICE MEDAL, SEA SERVICE DEPLOYMENT RIBBON (2), OVERSEAS SERVICE RIBBON (2)

Medical/Service Record Entries Related to Characterization of Service or Basis for Discharge

20031107:	NJP -- Viol UCMJ Art. 92 – Failure to obey order or regulation; viol UCMJ Art. 134 – Disorderly conduct, drunkenness; viol UCMJ Art. 108 – Destruction of government property; viol UCMJ Art. 107 – False official statement.
	Awarded - FOP ($300.00) for (2 months); RIR (E-1) suspended for 6 months; Restr for (60 days).

Discharge Process
Charge(s) Preferred:  20050901
Charge(s) and Specification(s):  Article 80: Attempt to wrongfully possess one pill of Ecstasy on or about 20050813.
	
Date Applicant Submitted SILT request:		20050926
	Consulted with or Waived Counsel:		
	Acknowledged Understanding Elements:	
	Acknowledged Guilt to:			Article(s) 80 		BCD/DD authorized for offense(s)	
	Acknowledged Consequences of OTH:	
	Type of Characterization Requested:	

Separation Authority (date):	COMMANDER, CARRIER STRIKE GROUP FIVE (20051006)
	Reason for Discharge directed:		
	Characterization directed:			
Date Applicant Discharged:			20051019

Types of Documents Submitted by Applicant and Considered By Board

Related to Military Service:	Service and/or Medical Record:  		Other Records:  

Related to Post-Service Period:  	
	Employment:  			Finances:  			Education: 		
	Health/Medical Records:  		Substance Abuse:			Criminal Records:  	
	Family/Personal Status: 		Community Service:  		References:  		
	
Additional Statements From Applicant:  	From Representative:    Other Documentation (Describe)       

Pertinent Regulation/Law

A.  Naval Military Personnel Manual, (NAVPERS 15560C), Change 11, effective 31 May 2005 and Present, Article 1910-106, SEPARATION IN LIEU OF TRIAL BY COURT-MARTIAL.

B.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part IV, Para 403m(7)(b), Presumption Concerning Court-Martial Specifications.

C.  The Manual for Courts-Martial authorizes a punitive discharge as part of the sentence upon conviction by a special or general court-martial for violation of the UCMJ, Articles 80, Attempts and 112a, Wrongful use, possession, etc. of controlled substances.
Recorder’s Signature:  _____________________________________________

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 to the Joint Service Review Activity, OUSD (P&R) PI-LP, The Pentagon, Washington, DC  20301-4000.  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