ex-AR, USN

Current Discharge and Applicant’s Request

Application Received: 20100826
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)	19940415 - 19940531  	Active:	

Period of Service Under Review:
Date of Current Enlistment:  19940601	Age at Enlistment:  
Period of Enlistment:   Years   Extension
Date of Discharge:  19971219	Highest Rank/Rate:  AA
Length of Service:   Years     Months   19 Days
Education Level:  	AFQT:  65
Evaluation Marks:	Performance:  3.8 (1)	Behavior:  3.8 (1)	OTA:  3.6 

Awards and Decorations (per DD 214):	NDSM

Periods of Unauthorized Absence: 19950413 - 19960304 (321 days)

Periods of Confinement: 19960305 - 19960512 (69 days Pre-trial Confinement); 
                                        19960513 - 19960606 (25 days confinement)

NJP:  NONE	SCM:  NONE		CC:  	Retention Warning Counseling:  NONE 

SPCM:  1

- 19960513:	Article 86 (Absence without leave, UA 19950413 - 19960304, 321 days, apprehended)
	Sentence: RIR FOP CONF60 DAYS (19960305 - 19960606, 42 days) BCD

Types of Documents Submitted/reviewed

Related to Military Service:
	DD 214:		Service/Medical Record:		Other Records:	
					Verbatim Record of Trial by SPCM

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:	

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

Applicant’s Issues

Decisional Issue:  The Applicant seeks clemency in the form of an upgrade to his characterization of service, contending that the current discharge characterization is an inequitable punishment as it is preventing him from being able to provide for his family.

Decision

Date:  20111214	            	Location:  Washington D.C.	Representation:  none

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

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, as stated in a court-martial, 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 19 on a three-year enlistment contract under the Airman Apprenticeship Training Program.  The highest rank achieved by the Applicant during his enlistment was E-2/Airman Apprentice.  The Applicant completed 12 months of his enlistment contract before engaging in the misconduct of record.  The Applicant’s record of service documents a punitive conviction and punishment as adjudged by a Special Court-Martial on 13 May 1996.  The Applicant was subject to trial for violation of Article 86 (Absence without leave) wherein the Applicant absented himself from his command, without authority, on 19950413 and did remain so absent until 19960304 (321 days); the unauthorized absence was terminated by civilian law enforcement apprehension and subsequent return of the Applicant to military custody.  Given the extensive duration of the absence, which was terminated by apprehension, the Applicant’s command placed him in pre-trial confinement and referred charges for trial by Special Court-Martial.  A qualified legal defense counsel represented the Applicant throughout the trial.  Given the facts of the case, the Special Court-Martial awarded the Applicant a Bad Conduct Discharge and confinement for a period of 60 days.  The case was submitted for review to the U.S. Navy-Marine Corps Court of Criminal Appeals without assignments of error; it was reviewed and the findings were affirmed.  Subsequently, the Navy Marine Corps Appellate Leave Activity ordered the Bad Conduct Discharge executed.  The Applicant, through defense counsel, petitioned the Court of Appeals of the Armed Forces (CAAF) for a review of the Navy-Marine Corps Appellate Court finding, contending the punishment, as awarded, was excessive.  The CAAF reviewed the request and denied the Applicant’s petition for review.  As such, the Applicant’s Bad Conduct Discharge was ordered executed, and it was effected on 19 December 1997.

Decisional Issue: (Clemency/Equity)  PARTIAL CLEMENCY WARRANTED.  The Applicant seeks clemency in the form of an upgrade to his characterization of service, contending that the current discharge characterization is an inequitable punishment as it is preventing him from being able to provide for his family.  In response to the Applicant’s clemency request, relevant and material facts as stated in a court-martial, are presumed by the NDRB, to be established facts; matters of propriety are decided and upheld through the appellant’s right to legal review process.  The Applicant’s service record documents a period of service of approximately 12 months of active honorable service prior to absenting himself from his unit.  The Verbatim Record of Trial documents the reasons the Applicant opted to absent himself from his unit, and then chose to remain absent, for 321 days - an absence that was terminated through apprehension by civilian law enforcement personnel.  The Applicant remained absent from his assigned unit for a period of 321 days; any absence in excess of 30 days is considered a serious offense by the UCMJ, punishable by punitive discharge (Bad Conduct Discharge or Dishonorable Discharge) and confinement for up to 18 months when the absence is terminated by apprehension.  Due to the Applicant’s refusal to conform to the expected conduct of a United States Sailor, coupled with the need to ensure good order and discipline of the service, the Command referred the period of unauthorized absence to a trial by Special Court-Martial.  The stated misconduct resulted in 

the awarding of a punitive Bad Conduct Discharge and confinement for a period of 60 days.  The Applicant’s misconduct documents an extensive period of unauthorized absence and a general failure to conform to military rules and regulations, however, the record also documents that the Applicant was, in fact, turning himself in to authorities in order to settle his misconduct of record with the Navy.

The NDRB recognizes that many of our service members are young at the time they enlist for service, however, most manage to serve their enlistments 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 or a sufficient reason for misconduct, especially deliberate misconduct of the nature specified.  Moreover, despite a servicemember’s prior record of service, certain serious offenses, even though isolated, warrant separation from the Naval Service to maintain proper order and discipline.  The documented unauthorized absence in excess of a year and the Applicant’s general contempt for good order and discipline is not minor misconduct and supports the findings of the court-martial in awarding a Bad Conduct Discharge.  However, the NDRB found that the evidence of record, along with the Applicant’s statement and supporting documentation, warranted consideration of the facts and circumstances surrounding the absence as extenuating and mitigating circumstances , which do offset the seriousness of the offense for which the discharge was awarded.  Given the Applicant’s matters of mitigation, the NDRB agreed unanimously that clemency was warranted.  The NDRB voted 5-0 to upgrade the characterization of service at discharge to Under Other Than Honorable Conditions; however, by a vote of 5-0, no change to the narrative reason for separation is warranted.  Partial clemency granted.

Summary:  After a thorough review of the available evidence, to include the Applicant’s summary of service,  record entries, the record of trial by Special Court-Martial, and the discharge process, the NDRB determined that clemency was warranted.  Therefore, the awarded characterization of service shall change to UNDER OTHER THAN HONORABLE CONDITIONS, however, 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.

Pertinent Regulation/Law

A.  Naval Military Personnel Manual, (NAVPERS 15560C), Change 14, effective 3 October 96 until 14 December 1998, 
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.

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