ex-AR, USN

Current Discharge and Applicant’s Request

Application Received: 20100618
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)	20000830 - 20000912  	Active:	

Period of Service Under Review:
Date of Current Enlistment:  20000913	Age at Enlistment:  
Period of Enlistment:   Years   Extension
Date of Discharge:  20050223	Highest Rank/Rate:  AA
Length of Service:   Year(s)     Month(s)   03 Day(s)
Education Level:  	AFQT:  42
Evaluation Marks:	Performance:  3.3 (3)	Behavior:  1.0 (3)	OTA:  2.62

Awards and Decorations (per DD 214):	NONE

Periods of UA:  20030506 - 20030913 (130 days)

Periods of CONF:  (SCM) 200200703 - 20020727 (24 days); 20030913 - 20031017 (34 days) (Pre-trial SPCL CM); 20031018 - 20031020 (3 days) (Post-Trial SPCL CM)

NJP:  

- 20020221:	Article  (Unauthorized absence) 
	Awarded:     Suspended:  
SCM:  

- 20020703:	Article (Unauthorized absence)[Extracted from Evaluation Report & Counseling Record dtd 20020821]
	Article 87 (Missing ship’s movement) 
	Sentence: Details NFIR; 30 days confinement (20020703-20020727 (24 days))

SPCM:  

- 20031017:	Article  (Unauthorized absence 20030506-20030913, 130 days) 
	Sentence: CONF 45 days  
	CA: Sentence approved and except for that part of the sentence extending to Bad Conduct Discharge will be executed. 
CC:  

Retention Warning Counseling:  

- 20020221:	For CO’s NJP held this date for violation of UCMJ, Article 86 (Unauthorized absence)  

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.

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 issue: The Applicant seeks clemency based on honorable service and wartime service. 

Decision

Date:  20111013	               	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.  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 25 on a four-year enlistment contract under the Airmen Apprenticeship program.  The Applicant’s enlistment record reflects his entry into military service without any waivers to enlistment and induction standards.  The highest rank achieved by the Applicant during his enlistment was E-2/Airman Apprentice.  The Applicant’s period of service under review reflects one NAVPERS 1070/613 retention-counseling warning.  Additionally, his record of service contains one non-judicial punishment and one summary court-martial for violation of the Uniform Code of Military Justice (UCMJ): Article 86 (Unauthorized absence) and Article 87 (Missing ships movement).  Moreover, the Applicant’s service record reflects a punitive conviction and punishment as adjudged by a Special Court-Martial on 17 October 2003.  The Applicant was subject to trial by Special Court-Martial for violation of Article 86 (Unauthorized absence (130 days)).  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 45 days.  The Applicant was tried in accordance with a signed pre-trial agreement in which he pled guilty and provided a signed stipulation to the facts.  The case was submitted for review to the U.S. Navy–Marine Corps Court of Criminal Appeals with one assignment of error; it was reviewed and the findings were affirmed.  Subsequently, the Navy Marine Corps Appellate Leave Activity ordered the Bad Conduct Discharge executed on 23 February 2005.

Decisional Issue:  (Clemency/Equity) - RELIEF NOT WARRANTED.  The Applicant seeks clemency based on honorable service and wartime service.  In response to the Applicant's clemency request, relevant and material facts stated in a court-martial are presumed, by the NDRB, to be established facts.  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 3 years and 6 months in which time he was subject to one Nonjudicial Punishment for Unauthorized Absence, one Summary Court-Martial for Unauthorized Absence and Missing Ship’s Movement, and a trial by Special Court-Martial for an Unauthorized Absence of 130 days.  The Applicant’s misconduct documents a pattern of misconduct related to unauthorized absence and a general failure to conform to military rules and regulations.  Due to the Applicant’s refusal to conform to the expected conduct of a United States Sailor after administrative punishment and retention counseling, coupled with the need to ensure good order and discipline of the service, the Command referred the final unauthorized absence charge to trial.  The NDRB recognizes that many of our servicemembers are young at the time they enlist for service, however, most manage to serve their enlistment honorably.  While some members may be less mature than others, the NDRB does not view a member’s youth or immaturity to be a mitigating factor for misconduct, especially repetitive misconduct.  The pattern of unauthorized absences is not minor misconduct and 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.  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.

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 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