ex-ADAR, USN

Current Discharge and Applicant’s Request

Application Received: 20080418
Characterization of Service Received:  
Narrative Reason for Discharge:  
Authority for Discharge:  MILPERSMAN 3640420

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

Summary of Service

Prior Service:
Inactive:  USNR (DEP) 19860512 - 19860611  		Active:    19860612- 19920603   HON

Period of Service Under Review:
Date of Enlistment:  19920604	  Period of Enlistment:  Years   Extension	Date of Discharge:  19970304
Length of Service:  Years     Months   19 Days	Education Level: 	Age at Enlistment: 	AFQT: 63
Highest Rank/Rate: 	AD2	Evaluation Marks: Performance:	4.0 (4)	Behavior: 4.0 (4)	OTA: 4.00
Awards and Decorations (per DD 214):  Rifle  Pistol     

Periods of UA/CONF:  UA:  19950420 - 19950502 (13 days) 
                                              19950620 - 19950708 (19 days) 
                                              19950807 - 19960316 (220 days) 
                                              19960510 - 19970304 (295 days)  

                      CONF:  19960316 - 19960507 (49 days)

NJP:  
- 19920819:  Article 111 (Drunken driving) 
                     Awarded:        Suspended:  

SCM:       CC:  
   
SPCM:  
- 19960502:	Article 86 (UA) 
		- Specification 1: 19950420 - 19950503 (13 days)
		- Specification 2: 19950620 - 19950709 (19 days)
		- Specification 3: 19950807 - 19960316 (220 days)
	Article 112a (Drug use, wrongful use of cocaine)
	Sentence:  BCD; RIR to E1; FOP $500 per month for 3 months; confined for 75 days.

Retention Warnings:  
- 19920819:  For NJP for violation of NJP Article 111 (Drunk driving)

Types of Documents Submitted/reviewed

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

	-Record of trial dated 2 May 1996.

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 Congress member:    

              Other Documentation (Describe):  

Pertinent Regulation/Law

A.  Naval Military Personnel Manual, (NAVPERS 15560C), Change 14, effective 3 October 96 until 
14 December 1998, 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.

C.  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.

D.  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 86 and 112a.

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

Applicant’s Issues

1.  Military benefits. 
2.  Isolated incident.
3.  Record of service.
4.  Mitigating circumstances.
5.  Post-service conduct.

Decision

Date:  20081121		Location:  Washington D.C.	Representation:  

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

Discussion

:   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, specifically the paragraph concerning , regarding .

:  ()  .  The Applicant contends he is entitled to clemency due to his record of service, mitigating circumstances which contributed to his misconduct (specifically marital and financial problems), and because his misconduct was an isolated incident in nine years 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.  The Applicant’s record of service was marred by one NJP and a retention warning for a violation of the Uniform Code of Military Justice (UCMJ):  Article 111 (Drunken driving).  The Applicant was subsequently found guilty by a SPCM for violation of Article 86 (Unauthorized absence) for a total of more than 250 days, and Article 112a (Drug use, wrongful use of a controlled substance).  These are considered serious violations which resulted in the Applicant being awarded a “Bad Conduct Discharge”. 

In response to the Applicant’s clemency request, 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 which reduces the severity of the punishment imposed. The NDRB carefully reviewed the Applicants record of service and considered the marital and financial problems he was facing at the time of his misconduct.  The NDRB determined clemency founded on the length and character of the Applicant’s military service, including circumstances the Applicant feels mitigated his misconduct, would be inappropriate.

: ()  .  The Applicant contends clemency is warranted in his case due to post-service conduct.  The NDRB is authorized to consider post-service factors in consideration if a case warrants clemency.  Supporting documentation to help support post service clemency includes, but is not limited to: a verifiable continuous employment record; documentation of ongoing community or church service; certification of non-involvement with civil authorities; evidence of financial stability or letters of good standing from banks, credit card company’s, or other financial institutions; character witness statements; and particularly for cases involving drug abuse, documentation of a drug-free lifestyle.  The Applicant is advised that completion of these items alone does not guarantee clemency will be granted, as each discharge is reviewed by the Board on a case by case basis to determine if post service conduct justifies clemency.  The NDRB determined the Applicant did not provide sufficient grounds to merit clemency at this time.  The Applicant submitted evidence of long-term employment and a character reference with his DD-293 Application.  While this does indicate some degree of good post-service conduct, the NDRB determined this does not meet the high standard required to warrant clemency.  

After a thorough review of the available evidence, to include the Applicant’s Summary of Service, Service and Medical Record Entries, Discharge Process and evidence submitted by the Applicant, the Board found clemency was not warranted and the sentence awarded the Applicant at his court-martial was appropriate for the offenses he committed. 

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 or for any basis wherein an Other Than Honorable Discharge is authorized, 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