ex-SR, USN

Current Discharge and Applicant’s Request

Application Received: 20100513
Characterization of Service Received:  
Narrative Reason for Discharge:  
Authority for Discharge:  MILPERSMAN 5815-010

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

Summary of Service

Prior Service:
Inactive:	USNR (DEP)	19961115 - 19961216  	Active:	

Period of Service Under Review:
Date of Current Enlistment:  19961217	Age at Enlistment:  
Period of Enlistment:   Years   Extension
Date of Discharge:  19991212	Highest Rank/Rate:  SR
Length of Service:   Year(s)     Month(s)   02 Day(s)
Education Level:  	AFQT:  56
Evaluation Marks:	Performance:  NFIR	Behavior:  NFIR	OTA:  NFIR

Awards and Decorations (per DD 214):	NONE

Periods of UA:  19970611 to 19970630 (19 days), 19970701 – 19970820 (50 days), 19970902 – 19980801 (332 days), 19980811 – 19980998 (33 days), 19980914 – 19981001 (16 days)

Periods of Confinement: Pre-trial confinement: 19980804-19980810 (7 days) and 19981001-19981022 (22 days); post-trial confinement 19981022-19981123 (32 days)

NJP:  1
- 19970327:	Article  (Failure to obey order or regulation - specifically, underage drinking)
	Awarded:    Suspended:  

SCM:  NONE

SPCM:  1
- 19981022:	Article 86 (Absence without leave), 5 specifications:
	Specification 1:  Absented himself from his unit, without authority, and did remain so absent from 19970611 to 19970630 (19 days), surrendered himself to military authority.
	Specification 2:  Absented himself from his unit, without authority, and did remain so absent from 19970701 – 19970820 (50 days), surrendered himself to military authority.
	Specification 3:  Absented himself from his unit, without authority, and did remain so absent from 19970902 – 19980801 (332 days), apprehended by civil law enforcement for possession of controlled substance and returned to military custody for disciplinary actions.
	Specification 4:  Absented himself from his unit, without authority, and did remain so absent from 19980811 – 19980998 (33 days), apprehended by military authorities.
	Specification 5:  Escaped from custody of military authority, and did remain so absent from 19980914 – 19981001 (16 days), re-apprehended by military authorities. 
	Article 91 (Insubordinate conduct toward warrant officer, noncommissioned officer, or petty officer by being disrespectful in language toward a PO3)
	Article 92 (Failure to obey order or regulation, underage drinking)
	Article 95 (Resistance, flight, breach of arrest, and escape, escaped from custody)
	Article 108 (Military property of United States – loss, damage, destruction, or wrongful disposition, willfully destroyed handcuffs)
	Article 112a (Wrongful use of controlled substance: 4 specifications - wrongful use of marijuana; 1 specification - wrongful use of cocaine)
	Article 134 (General article incapacitated for duty, broke restriction on divers occasions), 2 specifications
	Sentence adjudged: 150 Days confinement, forfeiture of $500.00 pay per month for 5 months, and a BCD.  In accordance with Pre-Trial Agreement; all confinement in excess of 75 days shall be suspended for a period of 12 months unless sooner vacated.   
	Time Served: (Pre-trial confinement: 19980804-19980810 (7 days) and 19981001-19981022 (22 days); post-trial confinement 19981022-19981123 (32) 

CC:  

Retention Warning Counseling:  1

- 19970327:	For failure to obey order or regulation, underage drinking.

Administrative Corrections to the Applicant’s DD 214

The NDRB did note administrative errors on the original DD Form 214:

	  “COURT-MARTIAL”

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 22, effective 15 December 1998 to 
21 August 2002, Article 5815-010 (Formerly 3640420), 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

Decisional issues: The Applicant contends that his discharge characterization of service was inequitable in that his youth and immaturity were mitigating factors that he believes were not taken into consideration.  

Decision

Date:  20110818	          	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.  As such, 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 four-year enlistment contract under the Seaman Apprenticeship program.  The Applicant’s enlistment record reflects his entry into military service with a waiver for pre-service drug possession (marijuana) and a waiver for disorderly conduct.  The Applicant acknowledged his full understanding of the Navy Policy on Illegal Drug Use – in writing – as a function of his enlistment waiver process.

The Applicant’s period of service under review reflects one NAVPERS 1070/613 retention-counseling warning.  Additionally, his record contains one non-judicial punishment for violation of the Uniform Code of Military Justice (UCMJ), specifically, violation of Article 92 (Failure to obey orders or regulations).  Moreover, the Applicant’s service record reflects a punitive conviction and punishment as adjudged by a special court-martial on 22 October 1998.  The Applicant was subject to trial by special court-martial for violation of the UCMJ as follows: Article 86 (Unauthorized absence - 5 specifications), Article 91 (Insubordinate conduct), Article 92 (Failure to obey lawful order or regulation), Article 95 (Resistance, flight, breach of arrest, and escape), Article 108 (Loss, damage, destruction of government property - value greater than $500.00), Article 112(a) (Wrongful use, possession, etc of a schedule I controlled substance -marijuana), and Article 134 (Breaking restriction, 2 specifications and incapacitated for duty on diverse occasions, 1 specification).  A qualified legal defense counsel represented the Applicant during his trial by special court-martial.  Given the facts of the case, the trial judge awarded the Applicant a Bad Conduct Discharge, reduction in grade to E-1, and confinement for a period of 150 days.  In accordance with the Applicant’s pre-trial agreement, all confinement in excess of 75 days was suspended, for a period 12 months, unless sooner vacated.  The case was submitted for review to the U.S. Navy–Marine Corps Court of Criminal Appeals; it was reviewed and the findings were affirmed.  Subsequently, the Navy Marine Corps Appellate Leave Activity ordered the Bad Conduct Discharge executed.  The Applicant’s final discharge was effective 12 December 1999.     

Decisional Issue:  (Clemency) - RELIEF NOT WARRANTED.  The Applicant contends that his discharge characterization of service was inequitable in that his youth and immaturity were mitigating factors that he believes were not taken into 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 a period of service of approximately 1 year and 10 months in which time he was subject to one NJP and a trial by special court-martial.  The Applicant’s misconduct includes a pattern of misconduct related to unauthorized absences totaling 450 days, breaking lawful orders of restriction, using illegal drugs, violating orders, and insubordinate conduct.  Due to the Applicant’s refusal to conform to the expected conduct of a United States Sailor and the detrimental effect to the good order and discipline of the command, the Command referred the charges to trial by court-martial.  The stated misconduct resulted in the special court-martial awarding a punitive Bad Conduct Discharge, reduction to E-1, and confinement for 150 days.

The NDRB recognizes that many of our service members are young at the time they enlist for service, however, most manage to serve their enlistment honorably.  While it is understood that some members may be less mature than others, the NDRB does not view a member’s youth or immaturity to be a mitigating factor or a sufficient reason for misconduct, especially deliberate and repetitive misconduct.  Moreover, despite a servicemember’s prior record of service, certain serious offenses warrant separation from the Navy to maintain proper order and discipline.  The wrongful use of a controlled substance, coupled with chronic unauthorized absence, breaking lawful restriction, and destruction of government property is not minor misconduct.  Additionally, the Applicant’s failure to divulge his history of a long-standing and chronic use of alcohol, marijuana, and cocaine prior to his enlistment further supports the findings of the court-martial in awarding a Bad Conduct Discharge.  The NDRB found that the evidence of record, along with the Applicant’s statement and supporting documentation, did not contain sufficient mitigating or extenuating factors to offset the seriousness of the offenses for which the discharge was awarded.  Given the short period of the Applicant’s service, coupled with the repetitive and deliberate nature of the misconduct, the NDRB agreed unanimously that the punishment, as awarded, was warranted and was equitable; relief in the form of clemency is 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