ex-AOAA, USN
ND07-00116

Current Discharge and Applicant’s Request

Application Received:  20061101	Characterization Received:  
Narrative Reason:  IN LIEU OF TRIAL BY COURT-MARTIAL 		Authority:  MILPERSMAN 1910-106

Applicant’s Request:	Characterization change to:    
			Narrative Reason change: 

Applicant’s Issues:	1.  Accused of crime I did not commit.
			2.  Accepted the discharge under duress.
			3.  G.I. Bill
			4.  Punished for a crime I did not commit.
			
Date:  20071128  		Location:  Washington D.C. 

Decision

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

Discussion

Issue 3:   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 .

Issues 1, 2 and 4 ():  The Applicant states that he is not guilty of the stabbing incident which resulted in months of liberty risk, restriction and his first nonjudicial punishment. The Board presumes regularity in the conduct of Governmental affairs unless there is substantial credible evidence (from the Applicant’s summary of service, service record entries, medical record entries, elements of discharge, and evidence submitted by the Applicant) to rebut the presumption.  The Applicant bears the burden of overcoming this presumption through the presentation of substantial and credible evidence to support his claim.  There is no evidence in the record, nor has the Applicant produced any evidence, to support his contention.  Never-the-less this misconduct is not the misconduct which resulted in the Applicant’s discharge.  The Applicant requested discharge to escape trial by court-martial for subsequent charges of violations of the UCMJ articles 90, 92 and 95.  In the request the Applicant noted that his rights were thoroughly explained to him and that he had consulted counsel.  Furthermore, the Applicant admitted guilt to the violations of UCMJ Articles 90 and 95.  He further certified a complete understanding of the negative consequences of his actions and that characterization of service could be under other than honorable conditions.  Violations of UCMJ Articles 90 and 95 carry a maximum penalty of up to a dishonorable discharge and up to 5 years of imprisonment for each specification if adjudicated by a court martial.  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 to his characterization of service.

In reviewing discharges, the Board presumes regularity in the conduct of governmental affairs unless there is substantial credible evidence (to include evidence submitted by the Applicant) to rebut the presumption.  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)		20000613 - 20000628  		Active:   	
Period of Service Under Review:
Date of Enlistment: 20000629		Years Contracted:  ;		Date of Discharge:  20040120
Length of Service:  03 Yrs 06 Mths 22 Dys			Lost Time:  Days Confined: unable to determine precisely
Education Level:  	Age at Enlistment:  	AFQT:  57		Highest Rank/Rate:  AOAN
Evaluation marks (# of occasions):	Performance:  3.0(2)	Behavior:  2.0(2)	 	OTA:  2.50
Awards and Decorations (per DD 214):  NAVY AND MARINE CORPS OVERSEAS SERVICE RIBBON, NATIONAL DEFENSE SERVICE MEDAL, ARMED FORCES EXPEDITIONARY MEDAL, MERITORIOUS UNIT COMMENDATION, SEA SERVICE DEPLOYMENT RIBBON, GOOD CONDUCT MEDAL   

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

20001007:	Applicant reported for duty aboard USS HARRY S TRUMAN (CVN 75)

20011116:	Applicant reported for duty aboard USS KITTY HAWK (CV 63).

20030103:	Applicant involved in bar fight which eventually leads to an NCIS investigation, restriction, pre-trial restriction, court martial charges preferred and subsequently withdrawn.

20030808:	Applicant placed on liberty risk on multiple occasions from 20030108 through 20040110.

20031118:	CO's NJP - viol UCMJ Art. 128 (assault with a dangerous weapon, 2 specifications); viol UCMJ Art. 134 (disorderly conduct).  Awarded - FOP ($682.00 for 2months); RIR (E-2); Restr (60days). [Extracted from evaluation and counseling record from 20030716 to 20031118].

20040105:	Special court-martial charges preferred on Applicant for UCMJ Art. 90 (disobeying a superior commissioned officer); 92 (failure to obey lawful order, 2 specs) and 95 (flight from apprehension).

20040107:	Applicant requested separation in lieu of trial by court-martial.

Discharge Process

Charges Preferred:  date				20040105
Charges and Specifications:
	Article 90 (disobeying a superior commissioned officer) ordered to stop.
	Article 92 (violation of a lawful order, 2 specifications) violation of restricted status and consuming alcohol while on 		restriction.
	Article 95 (flight from apprehension).

Date Applicant Submitted SILT request:		20040107
	Consulted with or Waived Counsel:		Consulted
	Acknowledged Understanding Elements:	
	Acknowledged Guilt to:			Articles 90 and 95 
		BCD/DD authorized for offense(s)	
	Acknowledged Consequences of OTH:	
	Type of Characterization Requested:	

Commanding Officer Recommendation (date):	 (20040107)
Separation Authority (date):			COMMANDER, CARRIER GROUP  FIVE (20040109)
	Reason for Discharge directed:		
	Characterization directed:			
Date Applicant Discharged:			20040120

20050214:	NDRB documentary record review Docket Number ND05-00257 conducted.  Determination: discharge proper and equitable; relief not warranted.

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), re-issued October 2002, effective 22 August 2002 until 25 January 2004, Article 1910-106 (formerly 3630650), 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 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 violations of the UCMJ, Articles 90 and 95.

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