ex-AEAR, USN

Current Discharge and Applicant’s Request

Application Received: 20080408
Characterization of Service Received:  
Narrative Reason for Discharge:  
Authority for Discharge:  MILPERSMAN 

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

Summary of Service

Prior Service:
Inactive: USNR (DEP) 19940831 - 19950207  		Active: 

Period of Service Under Review:
Date of Enlistment: 19950208	  Period of Enlistment:  Years   Extension	   Date of Discharge: 20020805
Length of Service:   Years    Months  15  Days	Education Level: 	Age at Enlistment: 	AFQT: 59
Highest Rank/Rate: AEAN	Evaluation Marks: Performance: 2.0(2)	Behavior: 3.0(2)	OTA: 2.67
Awards and Decorations (per DD 214): NDSM NAVY”E”RIBBON AFER SSDR (2ND) MUC

Periods of CONF: 19950606-19950618 (12 DAYS), 19990224-19990508 (74 DAYS)
Period of Lost Time per DD 214: 19990511-20020805 (1180 DAYS) 

NJPs: 
19970729: Article 92 (Dereliction of duties);
	       Article 107 (False official statement). 
                  Awarded:  .  Susp - .
SCMs: 
19950606: Article 86 (UA), 1930-2130, 19950521;
	       Article 92 (Failed to obey a lawful order);
	       Art 134 (Unauthorized pass offense). 
                  Sentence:  .
SPCMs:	
199902-22-24: Article 86 (UA), 3 Specifications:
			- Specification 1: 19980731 to 19980803 (3 DAYS);
			- Specification 2: 19980808 to 19980810 (2 DAYS);
			- Specification 3: 19980924 to 19981023 (29 DAYS).
		   Article 107 (Signing a false official statement);
		   Article 121 (Stealing in excess of $100.00);

Additional Charge I: Article 107 (Sign false official record), 2 specifications.
Additional Charge II: Article 86 (UA), 19990216 to 19990218 (2 DAYS).
	   Sentence: CONF FOR 3 MONTHS RIR E-1 FOP FINED $500.00, with additional 45 days CONF if 
                        fine is not paid, BCD.

CC: 

Retention Warnings: 
19950522: For Article 92-Failure to obey order or regulation, underage drinking.

Types of Documents Submitted/reviewed

Related to Military Service:	DD 214:  	Service and/or Medical Record:  		Other Records:  

	- Record of Trial from 22-24 February 1999

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

Pertinent Regulation/Law

A.  The Naval Military Personnel Manual, (NAVPERS 15560C), Change 22, effective 15 December 1998 to 
21 August 2002, Article 5815-010, Executing a Dishonorable or Bad Conduct Discharge.

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.

DEPARTMENT OF THE NAVY
NAVAL DISCHARGE REVIEW BOARD (NDRB)
DISCHARGE REVIEW DECISIONAL DOCUMENT

Applicant’s Issues

1. Youth and Immaturity.
2. Didn’t intend to commit larceny.
3. The punishment did not fit the crime.

Decision

Date:  20080828        	Location:  Washington D.C.	Representation:  

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

Discussion

: ()  .  The Applicant has requested his discharge be upgraded to honorable based on the following: 1) he was young and immature at the time he committed the offenses which led to his discharge, 2) he did not intend to commit larceny, and 3) his punishment was too harsh for the crime.  In reviewing discharges, the NDRB 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.  The NDRB advises the Applicant that despite a service member’s youth and immaturity and good intentions the commission of certain serious offenses warrant separation from the Navy in order to maintain proper order and discipline.  The Applicant's misconduct is documented in his service record which is marred by a finding of guilty at a special court martial proceeding on 6 April 2002 for numerous violations of the Uniform Code of Military Justice: Article 86 (Unauthorized absence), 4 specifications; Article 107 (Signing false official statement), 2 specifications; and Article 121(Larceny in excess of $100).  The Applicant’s case was considered under the pertinent standards of equity to determine if any factors in this particular case merited clemency.  The NDRB determined the Applicant’s inexperience and good intentions were not sufficient mitigating or extenuating factors to offset the seriousness of the offenses for which the discharge was awarded.  Furthermore, the NDRB concluded the punishment awarded the Applicant was not too harsh considering the nature, frequency and severity of the offenses he committed.  Accordingly, the reason for discharge, convicted by special court-martial, and the punishment received were appropriate.  Additionally, the Applicant did not submit any evidence of post service conduct for the Board to consider.  The Board determined clemency was not warranted and an upgrade would be inappropriate.

After a thorough review of the available evidence, to include the Applicant’s Summary of Service,   Record Entries, Discharge Process and evidence submitted by the Applicant, the Board found 

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 or is referred to a court martial 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 other medical related reasons.  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 special 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.  The NDRB does not have the jurisdictional authority to review a discharge or dismissal resulting from a general court-martial.

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