ex-SR, USN

Current Discharge and Applicant’s Request

Application Received: 20100309
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)	19981222 - 19990726  	Active:	

Period of Service Under Review:
Date of Current Enlistment:  19990727	Age at Enlistment:  
Period of Enlistment:   Years   Extension
Date of Discharge:  20040831	Highest Rank/Rate:  SA
Length of Service:   Year(s)     Month(s)   14 Day(s)
Education Level:  	AFQT:  55
Evaluation Marks:	Performance:  3.0 (1)	Behavior:  1.0 (1)	OTA:  1.83

Awards and Decorations (per DD 214):	NONE

Period of UA: 20000512-20000516 (4 days); 20001120-20010710 (230 days); 20010820-20010827 (7 days); 
 	20010904-20010906 (2 days); 20010908-20010910 (2 days); 20010914-20010922 (8 days)

NJP:  

- 20000619:	Article  (Absence without leave) 
	Awarded:   Suspended:  

- 20000624:	Article  (Assault - Assault upon a sentinel)
	Article  (Insubordinate conduct toward a Non-commissioned Officer or Petty Officer)
	Article 86 (Missing from appointed place of duty)
	Article 92 (Failure to obey lawful general order or regulation)
	Article 113 (Misbehavior of a sentinel or lookout)
	Article 117 (Provoking speeches or gestures)
	Article 92 (Dereliction of duty) 
	Awarded:     Suspended:  

SCM:  

- 20010730:	Article  (UA 20001120-20010710, 230 days).  Period of UA ended through apprehension by civilian law enforcement personnel and subsequent return to military custody. 
	Sentence: CONF 29 days (Pre-trial: 20010710-20010729 (19 days); 20010730-20010807, 8 days)  

SPCM:  

- 20011115:	Article  (UA), 4 specifications
 	   Specification 1: Absent from unit 20010820-20010827, 7 days
	   Specification 2: Absent from unit 20010904-20010906, 2 days
	   Specification 3: Absent from unit 20010908-20010910, 2 days
	   Specification 4: Absent from unit 20010914-20010922, 8 days
	Article 91(Disrespectful in language toward Chief Master-at-Arms)
	Article 95 (Resist apprehension)
	Article 134 (Conduct of a nature to bring discredit upon the Armed Forces)  
	Sentence:  CONF 60 days .      

CC:  

Retention Warning Counseling:  

- 20000621:	For on 20000616 you were found guilty at NJP for violation of Article 86 (Absent without leave). 

- 20000627:	For on 20000622 you were found guilty at NJP for violation of Article 128 (Assault upon sentinel, 2 specifications); violation of Article 117 (Provoking speeches or gestures, 4 specifications); violation of Article 92 (Dereliction of duty, 3 specifications); violation of Article 91 (Failed to obey lawful order, 2 specifications); violation of Article 92 (Fail to obey lawful general regulation); and violation of Article 113 (Misbehavior of sentinel or lookout).   

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), re-issued October 2002, effective 22 August 2002 until 8 September 2004, 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.	Nondecisional issue: The Applicant seeks an upgrade in his discharge characterization from Bad Conduct to General (Under Honorable Conditions) in order to facilitate opportunities for reenlistment into the Armed Services. 

Decision

Date:  20110429	            	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 service record indicates he entered military service at age 18 on a 4-year enlistment contract.  The Applicant’s enlistment record reflects his entry into military service without any pre-service waivers.  The highest rank achieved by the Applicant during his enlistment was E-2/Seaman Apprentice.  The Applicant’s service reflects two NAVPERS 1070/613 retention-counseling warnings and two nonjudicial punishments for violations of the Uniform Code of Military Justice (UCMJ):

•	Article 86 (Unauthorized Absence, 2 Specifications - (1) absence from his unit without authority for 3 days and (2) failure to go to appointed place of duty)
•	Article 91 (Insubordinate conduct toward a Non-commissioned Officer or Petty Officer)  
•	Article 92 (2 specifications - (1) failure to obey lawful general order or regulation, (2) dereliction of duties)
•	Article 113 (Misbehavior of a sentinel)
•	Article 117 (Provoking speeches or gestures)
•	Article 128 (Assault upon a sentinel or lookout).

Additionally, the Applicant’s service record contains a Summary Court-Martial dated 30 July 2001 for violation of Article 86 of the UCMJ, specifically, absenting himself from his assigned unit without authority and remaining so absent for a period of 230 days (20001120 - 20010710) until being apprehended by civilian law enforcement authorities and returned to military custody.  During this period of absence, the Applicant was dropped from the unit rolls, was declared a deserter, and a military warrant was issued to Federal, State, and local law enforcement authorities for his apprehension and return to military custody.     

Finally, the Applicant’s official service record reflects punitive punishment as adjudged by a Special Court-Martial dated 15 November 2001.  The Applicant was subject to Special Court-Martial for violation of Article 86 (Unauthorized absence - 4 specifications), Article 91 (Disrespectful in language to a Chief Master-at-Arms), Article 95 (Resisting apprehension), and Article 134 (Conduct of a nature to bring discredit upon the Armed Forces).  The Applicant was represented by a qualified legal defense counsel during his trial by Special Court-Martial.  In accordance with a signed pre-trial agreement, the Applicant agreed to request trial by military judge alone and further elected to plead guilty to the charges and submitted a signed, written stipulation of the facts.  In consideration, the convening authority agreed to limit any adjudged period of confinement to no more than 60 days.  Given the facts of the case, the trial judge awarded the Applicant a Bad Conduct Discharge, ordered that he be confined for a period of 60 days, and ordered a forfeiture of pay.  The case was submitted for review with two assignments of error to the U.S. Navy–Marine Corps Court of Criminal Appeals; it was reviewed and the findings were affirmed on 25 March 2004.  Subsequently, the Navy-Marine Corps Appellate Leave Activity ordered the Bad Conduct Discharge executed on 26 August 2004.  Besides his DD Form 293, the Applicant provided no other documentation in support of his request for consideration by the NDRB.   

Nondecisional issue - The Applicant seeks an upgrade in his discharge characterization from Bad Conduct to General (Under Honorable Conditions) for reenlistment into the Armed Services.  The NDRB has no authority to upgrade a discharge characterization of service for the sole purpose of enhancing reenlistment opportunities.  Moreover, the NDRB has no jurisdiction or authority over reenlistment, reentry, or reinstatement into the Navy, Marine Corps, or any other of the Armed Forces and is not authorized to change a reenlistment code.  The Applicant is directed to the Addendum regarding this issue.  

Board Issue:  (Clemency) - RELIEF NOT WARRANTED.  The Applicant contends that he warrants clemency regarding the characterization of his service at discharge by submission of his request for review; however, the Applicant did not identify any specific issues of inequity for the NDRB’s consideration.  The NDRB conducted a thorough review of the Applicant’s discharge under the pertinent standards of equity to determine if any factors in this particular case merited clemency.  The Applicant’s service record documents two nonjudicial punishments for unauthorized absence, disrespect, disobedience, assault, and misbehavior while on duty.  Furthermore, the Applicant received a retention-counseling warning regarding his misconduct.  The command retained the Applicant and provided him an opportunity to correct his deficiencies.  The record reflects that 5 months later the Applicant chose to absent himself from his unit, without authority, and did remain absent for 230 days, ended only by apprehension and return to custody.  The Applicant was punished by Summary Court-Martial but was retained and given an opportunity to complete his service - honorably.  Within days of being released from confinement, the Applicant again returned to absenting himself from his unit over multiple occasions and ending his misconduct with resisting apprehension, being disrespectful to a Chief Master-at-Arms, and conducting himself to bring discredit upon the armed services; this misconduct resulted in a Special Court-Martial and the awarding of the punitive Bad Conduct Discharge.  

The NDRB found that the evidence of record, along with the Applicant’s statements, did not contain sufficient mitigating or extenuating factors to offset the seriousness of the offenses for which the discharge was awarded.  Given the extensive period of unauthorized absence, coupled with the repetitive and deliberate nature of the misconduct, the NDRB agreed unanimously that the punishment, as awarded, was equitable and that relief in the form of clemency was not warranted.  Relief denied.  

Summary:  After a thorough review of the available evidence, to include the Applicant’s summary of service,  record entries, the verbatim transcript record of trial by Special Court-Martial, and the discharge process, the NDRB determined that  Therefore, the awarded characterization of service shall  BAD CONDUCT DISCHARGE 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