ex-HR, USN

Current Discharge and Applicant’s Request

Application Received: 20091001
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)	19980826 - 19980903  	Active:	

Period of Service Under Review:
Date of Current Enlistment:  19980904	Age at Enlistment:  
Period of Enlistment:   Years   Extension
Date of Discharge:  20070723	Highest Rank/Rate:  HN
Length of Service:   Year(s)     Month(s)   22 Day(s)
Education Level:  	AFQT:  44
Evaluation Marks:	Performance:  4.0 (4)	Behavior:  2.7 (4)	OTA:  3.30

Awards and Decorations (per DD 214):	 

Periods of UA: 20020905-20021004 (29 days); 20021027-20030121 (86 days); 20030505-20030707 (53 days) 

Periods of Confinement:  Pre-trial Confinement 20030712 -20030915 (71 days); Confinement 20030916-20040707 (296 days) 

Appellate leave per (corrected): 200300708-20070723

NJP:  

- 20021017:	Article 86 (UA 20020905-20021004)
	Article 92 ( Failure to obey order or regulation)
	Awarded:     Suspended:    Vacated 20021024

SCM:  

SPCM:  

- 200303XX:  Article 86 (UA 20021027-20030121 (86 days) – Withdrawn due to Govt errors in trial 

- 20030916:	Article 86 (UA 20030505-20030707, 53 days)
	Article 134 (Debt, dishonorably to pay)
	Article 123a (Uttering checks with insufficient funds, intent to deceive) 
	Sentence: CONF 12 months (Pre-trial: 20030123-20030915, 232 days)  FOP 
	CA’s Action: Sentence is approved except for BCD, Confinement of 12 months; accused is entitled to 71 days credit for pre-trial Confinement against the sentence to Confinement, RIR to E-1, and Forfeiture of pay $767.00 x 12 months.   

CC:  

Retention Warning Counseling:  

Administrative Corrections to the Applicant’s DD 214

The NDRB did note administrative error(s) on the original DD Form 214:
	
	  “20020905-20021004 (29 days); 20021027-20030121 (86 days); 20030505-20030707 (53 days); 20030712 -20030915 (71 days); 20030916-20040707 (296 days)
	
The NDRB will recommend to the Commander, Navy Personnel Command, that the DD 214 be corrected as appropriate.

Types of Documents Submitted/reviewed

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

Related to Post-Service Period:
	Employment:		Finances:		Education/Training:	
	Health/Medical Records:		Rehabilitation/Treatment:		Criminal Records:	
	Personal Documentation:		Community Service:		References:	
	Department of VA letter:		Other Documentation:	
		Additional Statements:
	From Applicant:		From/To Representation:		From/To Congress member:	

Pertinent Regulation/Law

A.  The Naval Military Personnel Manual, (NAVPERS 15560C), Change 12, effective 19 September 2005 until 18 December 2007, 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 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.

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

Applicant’s Issues

1.	Decisional issue: (Clemency/Equity) Applicant contends that he was young and immature and that his no pay due status were mitigating factors in his misconduct and seeks clemency in upgrading his discharge characterization of service to Honorable.  

Decision

Date:  20101118		Location:  Washington D.C.	Representation:  

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

Discussion

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.  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.  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.  The Applicant's case was considered under the pertinent standards of equity to determine if any factors in this particular case merited clemency.  

The Applicant’s record of service is marred with a non-judicial punishment for violations of the Uniform Code of Military Justice (UCMJ): Article 86 (Absence without leave; specifically unauthorized absence from his unit 20020905-20021004 (29 days)) and Article 92 (Failure to obey order or regulation).  Furthermore, the Applicant was referred to trial by Special Court-Martial for violation of Article 86 (Unauthorized absence from his unit in excess of 30 days, terminated by apprehension by law enforcement -  20021027-20030121 (86 days)); Article 92 (Failure to obey an order or regulation); and Article 134 (Breaking restriction).  Ultimately, this trial was withdrawn, with prejudice, due to governmental errors.   

Finally, the Applicant was referred to trial by General Court-Martial for continued violations of the UCMJ.  Specifically, violation of:
•	Article 86 (Absent without leave; Unauthorized absence from his unit for more than 30 days, terminated by apprehension (20030505-20030707 (53 days)); 
•	Article 123a (Uttering checks with insufficient funds, intent to deceive; 2 separate specifications); and 
•	Article 134 (Debt, dishonorably failing to pay; 3 separate specifications).  
The Applicant accepted a pre-trial agreement to reduce the case from a General Court-Martial to trial by Special Court-Martial.  In acceptance of the lesser venue and reduced maximum sentence available, the Applicant agreed to plead guilty to the charges as specified before a trial by military judge alone.  He was found guilty in trial by judge alone and adjudged a Bad Conduct Discharge, confinement for 1 year, ordered a forfeiture of pay, and reduced in rank to HR (E-1).  The Convening Authority ordered the adjudged punishment executed.  The Applicant was confined for 296 days after being credited 71 days of pre-trial confinement to his sentence.  The case was reviewed and affirmed by the U.S. Navy–Marine Corps Court of Criminal Appeals.  Additionally, the Naval Clemency and Parole Board reviewed the case and determined that no clemency was warranted.  
Besides his DD Form 293, the Applicant provided no additional documentation on his behalf other than his complete medical record.

Issue 1: (Clemency) RELIEF NOT WARRANTED.  The Applicant contends that he was young and immature and that his no pay due status were mitigating factors in his misconduct; he seeks clemency by upgrading his discharge characterization of service to Honorable.  

In response to the Applicant’s request for clemency, relevant and material facts stated in a trial by court-martial 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 - an act of leniency that reduces the severity of the punishment imposed.  The Applicant’s case was considered under the pertinent standards of equity to determine if any factors in this particular case merited clemency.  

The Applicant had successfully completed Navy Recruit Training and his occupational specialty schools.  The Applicant was assigned to his Fleet command for two years prior to transferring to the 1st Marine Division.  As such, the NDRB determined that the Applicant's youth, age, or experience were not mitigating factors in his misconduct.  

The Applicant contends that his no pay due status after transferring to the 1st Marine Division was mitigation and the causal factor in his misconduct.  He contends that he went UA in order to find work that would provide monies for his family.  The Applicant provided no documentation that he had informed his chain of command of family problems and that he did not receive the assistance, leave, or help he asked for.  Additionally, the Applicant did not mention, nor provided documented proof, if he attempted to use any one of the numerous family support programs sponsored by or for military service members.  These programs and services, such as Family Advocacy, Navy – Marine Corps Relief Society, Red Cross, the Chaplain, or even Navy medical health personnel if needed, all provide services to members of the military, regardless of grade, in times of need.  Based on a review of the verbatim transcript of the trial by Special Court-Martial, the NDRB found the Applicant’s contention that his financial problems were mitigating justification for his misconduct to be without basis.

The NDRB conducted a thorough review of the available evidence, to include the Applicant’s Summary of Service, Service Record Entries, the verbatim transcript of the Special Court-Martial proceeding, and the overall discharge process.  Despite a Service Member’s prior record of service, certain serious offenses, even though isolated, warrant separation from the Naval service in order to maintain good order and discipline.  Violation of Article 86 (in excess of 30 days), Article 92, Article 123a, and Article 134 are considered serious offenses, punishable by a Bad Conduct Discharge and confinement if adjudicated and awarded as part of a sentence by a Special or General Court-Martial.  The Applicant was counseled by his Commanding Officer regarding his misconduct, was administratively punished at non-judicial punishment, and was given an opportunity to correct his errors.  The Applicant failed to correct his deficiencies in conduct and chose to deliberately and consciously continue engaging in willful misconduct in violation of the Uniform Code of Military Justice.  Based on the charges and specifications contained in the record of trial, referral to General Court-Martial was warranted.  The Convening Authority showed clemency when he agreed to limit sentencing by reducing the venue to trial by Special Court-Martial.

Based on the charges and specifications contained in the Special Court-Martial, coupled with the Applicant’s previous misconduct, the NDRB determined that the Applicant had committed acts that constituted a significant and dramatic departure from the conduct expected from a Service Member and brought significant discredit upon the United States Military and the Naval services.  The reason for discharge - convicted by Special Court-Martial - is appropriate.  Furthermore, based on this review, and the facts and circumstances unique to this case, the Board determined that the sentence awarded the Applicant at his court-martial was equitable and that relief on the basis of clemency was not warranted.  As such, by a vote of 5-0, the NDRB determined that the characterization of service shall remain “Bad Conduct Discharge” and the Narrative Reason for Separation shall remain “Court-Martial.”  Relief denied.

Summary:  After a thorough review of the available evidence, to include the Applicant’s summary of service,  record entries, and the verbatim transcript of trial by Special Court-Martial, the Board found   Therefore, the awarded characterization of service shall   and the narrative reason for separation shall remain .

The Applicant remains eligible for a personal appearance hearing for a period of fifteen years from the date of  discharge.  The Applicant is directed to the Addendum, specifically the paragraphs titled Additional Reviews and Post-Service Conduct.

ADDENDUM:  Information for the Applicant

Complaint Procedures:  If you believe 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:  After a document review has been conducted, former members are eligible for a personal appearance hearing, provided the application is received at the NDRB within 15 years of the Applicant’s 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.  There are veterans organizations such as the American Legion and the Disabled American Veterans that are willing to provide guidance to former service members in their efforts to obtain a discharge upgrade.  If a former member has been discharged for more than 15 years, has already been granted a personal appearance hearing or has otherwise exhausted their 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 U.S. Department of Veterans Affairs (VA) determines eligibility for post-service benefits, not the NDRB.  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 NDRB has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities.  Regulations limit the NDRB’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 BCNR can make changes to reenlistment codes.  Additionally, the NDRB 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 is processed subsequently for an administrative involuntary separation or is referred to a court martial for misconduct, the disability evaluation is suspended 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 BCNR can grant this type of narrative reason change.

Automatic Upgrades - There is no law or regulation that provides for an unfavorable discharge to be upgraded based solely on the passage of time or good conduct subsequent to leaving naval service.

Post-Service Conduct:  The NDRB is authorized to consider post-service factors in the recharacterization of a discharge.  Outstanding post-service conduct, 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, is considered during Board reviews.  Documentation to support a post-service conduct upgrade includes, but is not limited to: a verifiable continuous employment record; marriage and children’s birth certificates (if applicable); character witness statements; documentation of community or church service; certification of non-involvement with civil authorities; evidence of financial stability or letters of good standing from banks, credit card companies, or other financial institutions; attendance at or completion of higher education (official transcripts); and documentation of a drug-free lifestyle.   The Applicant is advised that completion of these items alone does not guarantee the upgrade of an unfavorable discharge, as each discharge is reviewed by the Board on a case-by-case basis to determine if post-service accomplishments help demonstrate  in-service misconduct was an aberration and not indicative of the member’s overall character.

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 NDRB 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