ex-AR, USN

Current Discharge and Applicant’s Request

Application Received: 20100623
Characterization of Service Received:  
Narrative Reason for Discharge:  
Authority for Discharge:  MILPERSMAN 3640420 [COURT-MARTIAL]

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

Summary of Service

Prior Service:
Inactive:	USNR (DEP)	19930114 - 19930221  	Active:	

Period of Service Under Review:
Date of Current Enlistment:  19930222	Age at Enlistment:  
Period of Enlistment:   Years   Extension
Date of Discharge:  19960105	Highest Rank/Rate:  AA
Length of Service:   Year(s)     Month(s)   15 Day(s)
Education Level:  	AFQT:  74
Evaluation Marks:	Performance:  3.8	Behavior:  4.0	OTA:  4.0

Awards and Decorations (per DD 214):	

Periods of UA:  None

Periods of CONF: 19940725 - 19941006 (74 days)

NJP:  	SCM:  	

SPCM:  

- 19940725:	Article  (Larceny), 29 specifications
	Sentence: 90 days (19940725 - 19941006, 74 days)   

                       [CA: The approved sentence to confinement for 90 days, forfeiture of $400.00 pay per month for three months, reduction to pay grade E-1 and a bad-conduct discharge, as promulgated in Commander, Naval Air Force, U.S. Atlantic Fleet, are approved and ordered executed, except the BCD, which may not be order executed until completion of appellate review process.]

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:

	  “COURT-MARTIAL”
  “94JUL25 - 94OCT06, 74 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.  Naval Military Personnel Manual, (NAVPERS 15560C), Change 5, effective 5 March 1993 until 2 October 1996, Article 3640420, DISCHARGE OF ENLISTED PERSONNEL ADJUDGED BY SENTENCE OF COURT-MARTIAL.

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.  It has been 14 years since the Special Court-Martial conviction and the Applicant contends that the Bad Conduct portion of his sentence was overly harsh.

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.  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 documents entry into military service at age 21 on a four-year enlistment contract under the Airman Apprenticeship program.  The Applicant’s enlistment record reflects his entry into military service without wavier to enlistment or induction standards.  The highest rank achieved by the Applicant during his enlistment was E-2/Airman Apprentice.  The Applicant’s record of service contains a punitive conviction from trial by Special Court-Martial on 25 July 1994 for violation of Article 121 (Larceny - 29 specifications).  Both military and civilian defense counsel represented the Applicant throughout the trial by Special Court-Martial process.  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 90 days.  The Applicant submitted a written request for clemency to the Convening Authority prior to his taking final action; the Convening Authority determined that clemency in the case was not warranted and ordered the adjudged sentence be executed.  The case was submitted for review with a single assignment of error to the U.S. Navy–Marine Corps Court of Criminal Appeals; however, upon review by the appellate judges, the findings were affirmed.  Subsequently, the Navy Marine Corps Appellate Leave Activity ordered the Bad Conduct Discharge executed.  The Applicant’s date of discharge was 05 January 1996.  

Decisional Issue:  (Clemency/Equity)  RELIEF NOT WARRANTED.  The Applicant seeks clemency: It has been 14 years since the Special Court-Martial conviction, and the Applicant contends that the Bad Conduct portion of his sentence was overly harsh.  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.  There is no law or regulation that authorizes a discharge to be upgraded automatically after the passage of a certain period of time.  A former service member has 15 years from the date of discharge to petition the NDRB for consideration of an upgrade; however, the NDRB does not automatically upgrade a discharge just because time has elapsed since discharge.  The Applicant’s service record documents a period of service of approximately 1 year and four months in which time he was subject to a trial by Special Court-Martial.  The Applicant’s misconduct documents a pattern of misconduct related larceny - specifically, the unauthorized ordering and theft of tools and supplies from the ship supply system throughout a period of 4 months (Dec 1993 - Mar 1994) - 29 individual specifications.  This misconduct violated the special trust and confidence the ship’s aviation department placed in the Applicant when assigning him to the duties as the Division Supply Petty Officer.  The NDRB determined that the misconduct was willful, deliberate, and calculated; as such, the discharge was warranted and equitable.

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 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 .  Since fifteen years from the date of his discharge has elapsed, the Applicant is no longer eligible for a review (personal appearance hearing) before the NDRB.  However, the Applicant may petition the Board for Correction of Naval Records, 2 Navy Annex, Washington, DC 20370-5100, using DD Form 149.    

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