ex-YNSR, USN
ND07-01076

Current Discharge and Applicant’s Request

Application Received:  20070731					Characterization Received:  
Narrative Reason:  COURT MARTIAL CONVICTION 	Authority:  MILPERSMAN 3640420

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

Applicant’s Issues:	1.  Request to wear the uniform honorably again.
			2.  Post – Employed and law abiding citizen (no docs).

Decision

By a vote of  the Characterization shall  .
By a vote of  the Narrative Reason shall  COURT MARTIAL CONVICTION.

Date:  20080117    		Location:  Washington D.C	 Representation:  

Discussion

Issue 1 ():  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. 

Issue 2 ():  The NDRB is authorized to consider post-service factors in the recharacterization of a discharge.  However, 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 the civilian life subsequent to leaving the service.  Normally, to permit relief a procedural impropriety or inequity must have been found to have existed during the period of enlistment in question.  Outstanding post-service conduct to the extent that such matters provide a basis for a more thorough understanding of the Applicant’s performance and conduct during the period of service under review, is considered.  The Applicant stated in his letter to the board that he is employed and has lived as a law abiding citizen since his discharge in support of his argument for an upgrade based on post-service conduct.  The Applicant's efforts need to be more encompassing than those provided.  For example, the Applicant could have produced evidence of continuing educational pursuits, a verifiable employment record, documentation of community service, and certification of non-involvement with civil authorities.  The Board determined that the Applicant’s unsubstantiated statements did not mitigate the misconduct which resulted in the Applicant’s discharge and clemency was not approved.  

Summary of Service

Prior Service:
Inactive: USNR (DEP) 19870528 - 19870824  			Active:   19870825 - 19910822  
Period of Service Under Review:
Date of Enlistment: 19910823		Years Contracted:  2; Extension:  43 months 		Date of Discharge:  19980310       
Length of Service:  07 Yrs 06 Mths 22 Dys						Lost Time:  184 days
Education Level:  	Age at Enlistment:  26	AFQT: 56	Highest Rank/Rate:  YN2
Evaluation marks (# of occasions):	Performance:  3.9 (4)	Behavior:  3.9 (4)	 	OTA:  4.0 (4)        
Awards and Decorations (per DD 214):  NDSM, SSDR, SWASM (w/ Bronze Star), Battle “E” Ribbon, Combat Action Ribbon, Navy Unit Commendation, Navy Achievement Medal, Kuwait Liberation Medal      

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

19910823:	Applicant reenlisted aboard USS MISSOURI (BB 63).

19920330:	Applicant awarded Navy Achievement Medal at HSL 47.

19940713:	NJP – Violations of UCMJ Articles 86 (unauthorized absence, 0800 19940602), 91 (willfully disobey, 19940602), and 134 (failure to pay just debts, 19940505).
	Awarded – FOP (1/2 months pay for 2 months, suspended for six months) and Extra duties (45 days).

19950123:	Charges preferred to Special Court Martial.

19950130:	Applicant to unauthorized absence at 0745.

19950301:	Applicant declared a deserter.  Remarks, “YN2 J_ (Applicant) fled to avoid trial by court martial.  He has been known to use altered military ID card.”

19950309:	Applicant apprehended at 1920 by civil authorities in San Diego, CA.

19950309:	Applicant to pre-trial confinement, NAS Miramar brig.

19950424:	Special Court Martial.

19950618:	From NAS Miramar brig.  Assigned to TPU San Diego, Ca.

19950714:	NJP – Violations of UCMJ Articles 86 (unauthorized absence, place of duty on 19950705) and 134 (communicating a threat on 19950711).

19950814:	Administratively transferred to NAMALA, Washington, DC.

19980310:	Applicant discharged.

Discharge Process

Charges and Specifications:  Article 107 (false official statement); Article 123a (insufficient funds, nine specifications); Article 134 (dishonorably fail to pay, four specifications); Article 86 (unauthorized absence, 37 days, apprehended); Article 89 (disrespect to a commissioned officer); Article 123 (forgery); Article 134 (communicating a threat)
Preferred:  19950123	Court-martial:  19950424	Findings:  Guilty of Articles:  86, 89, 107, 123, 123a, and 134      
Sentence:  BCD; Conf six months; RIR to E-1; FOP $300/month for six months;  CA action:  19950811
NC&PB Action:  NONE    			
Appellate Review Complete:  19971218	BCD ordered executed:  19980310 by SSPCMCO No. 9501768      
Applicant Discharged:  19980310

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 14, effective 03 Oct 96 until 14 Dec 98, 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 IV, Para 403m (7) (a), Presumption Concerning Court-Martial Specifications.

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