ex-BMSR, USN

Current Discharge and Applicant’s Request

Application Received: 20091204
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)	19911026 - 19920907  	Active:	 19920908 - 19970710 (HON)
				         19970711 - 20010222 (HON)

Period of Service Under Review:
Date of Current Enlistment:  20010223	Age at Enlistment:  
Period of Enlistment:   Years   Extension
Date of Discharge:  20040812	Highest Rank/Rate:  BM2
Length of Service:   Year(s)     Month(s)   21 Day(s)
Education Level:  	AFQT:  34
Evaluation Marks:	Performance:  NFIR	Behavior:  NFIR	OTA:  NFIR

Awards and Decorations (per DD 214):	Pistol  (3)  (2) (2) (2) (2) LoC

Periods of UA:  20010904 (1 day), 20010907 (1 day), 20010911-20010928 (17 days)

NJP:  	SCM:  

SPCM:  

- 20020103:	Article  (Absence without leave), 3 specifications
	Specification 1: UA 20010904-20010905
	Specification 2: UA 20010907-20010908
	Specification 3: UA 20010911-20010928
	Article  (Possession of two unregistered weapons in base housing), 20010907
	Article 112a (Wrongful use of methamphetamine), 2 specifications
	Specification 1: o/o 20010901
	Specification 2: o/o 20010906
	Sentence:   

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:

	 Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, should read:  “NAVY/MARINE CORPS ACHIEVEMENT MEDAL, NAVY BATTLE “E” RIBBON (3), NATIONAL DEFENSE SERVICE MEDAL, ARMED FORCES EXPEDITIONARY MEDAL (2), SEA SERVICE DEPLOYMENT RIBBON (2), MERITORIOUS UNIT COMMENDATION (2), GOOD CONDUCT MEDAL (2), UNIT LETTER OF COMMENDATION, PISTOL RIBBON SHARPSHOOTER”

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 8, effective 9 September 2004 until 
18 September 2005, 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.

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

Applicant’s Issues

1.	Applicant seeks clemency as punishment was too harsh based on an isolated incident in 9 years of service.
2.	Applicant contends his post-service achievements are indicative of his true character.

Decision

Date:  20110128		Location:  Washington D.C.	Representation:  

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

Discussion

The NDRB, under its responsibility to examine the propriety and equity of an Applicant’s discharge, is authorized to change the character of service and the reason for discharge if such change is warranted.  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.  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 identified two decisional issues for the Board’s consideration.  The Board completed a thorough review of the facts and circumstances that led to  discharge.  Of particular note, the Board found that the Applicant’s service records were incomplete with most documentation from his last period of enlistment (commenced 23 Feb 2001) missing.  The available documentation did not contain any negative NAVPERS 1070/613 (Page 13) retention warnings or a record of commanding officer’s nonjudicial punishment.  The records did reflect a trial by Special Court-Martial in which the Applicant was found guilty of violating the Uniform Code of Military Justice (UCMJ): Article 86 (Absence without leave, 3 specifications: 4 Sep 2001, surrendered; 7 Sep 2001, surrendered; and 11-28 Sep 2001, apprehended); Article 92 (Failure to obey a general order, possession of two unregistered shotguns in base housing, 7 Sep 2001); and Article 112a (Wrongful use of controlled substance, methamphetamine, 2 specifications: 1 Sep 2001, 6 Sep 2001).  The record also reflected that the Applicant had previously used marijuana  prior to entering the Navy and that he had signed his acknowledgement and complete understanding of the U.S. Navy Policy on Illegal Drugs on 8 Sep 1992, the day of his first enlistment in the Navy.  Based on the offenses committed by the Applicant,  command referred him to trial by Special Court-Martial.

:  (Decisional) ()  .  The Applicant seeks clemency as he contends that the punishment was too harsh based on an isolated incident in 9 years of service.  The Applicant’s record of misconduct included two separate incidents in which he knowingly and wrongfully used illegal drugs (methamphetamine).  Though his marriage was strained, which included significant spousal misconduct, it still does not warrant or otherwise provide cause for the Applicant violating the U.S. Navy zero-tolerance policy on illegal drug use.  Members of the Naval Service are expected to uphold the established high standards of conduct, as evidenced by the Core Values of Honor, Courage, and Commitment, no matter the environment or mission assigned.  The circumstances surrounding this conduct were aggravated by the Applicant’s unauthorized absence and subsequent missing ship’s movement, starting on 11 Sep 2001.  After considering all the facts and circumstances surrounding this case, the NDRB found that the punishment as adjudicated and sentenced by the Military Judge, and subsequently affirmed by the Navy-Marine Corps Court of Criminal Appeals, was appropriate.  Relief denied.

:  (Decisional) ()  .  The Applicant contends his post-service achievements are indicative of his true character.  The Applicant provided documentation that included: the Applicant’s letter to the board; two letters of recommendation from his employer; a character reference letter; and certificates of achievement.  Though not submitted by the Applicant, documentation could have also included: evidence of a drug-free life style; evidence of financial stability; certification of non-involvement with civil authorities; college or vocational school transcripts; documentation of community or church service; and marriage or child birth certificates (as applicable).  The NDRB considers post-service conduct in order to determine if the misconduct committed during active duty was indicative of the Applicant's character or an aberration.  However, there is no law or regulation that provides an unfavorable discharge may be upgraded based solely on the passage of time or good conduct in 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.  The NDRB determined the Applicant’s post-service conduct was not sufficient to warrant an upgrade.

Summary:  After a thorough review of the available evidence, to include the Applicant’s summary of service,  record entries, Special Court-Martial Record of Trial, the discharge process, and submitted post-service documentation, the Board found the discharge was proper and equitable at the time of discharge.  Therefore, the awarded characterization of service shall  BAD CONDUCT 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, Automatic Upgrades, 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