ex-AKAR, USN

Current Discharge and Applicant’s Request

Application Received: 20101102
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)	19900329 - 19900801  	Active:	  19900802 - 19940407 (HON)

Period of Service Under Review:
Date of Current Re-enlistment:  19940408	Age at re-enlistment:  
Period of Enlistment:   Years   Extension
Date of Discharge:  19951106	Highest Rank/Rate:  AK3
Length of Service:   Year(s)     Month(s)   29 Day(s)
Education Level:  	AFQT:  67
Evaluation Marks:	Performance:  NFIR	Behavior:  NFIR	OTA:  3.8 Average in service

Awards and Decorations (per DD 214):	 (2nd Award), , , , ,   (3), JMUC

Period of UA:  

NJP:  	SCM:  		CC:  	Retention Warning Counseling:  

SPCM:  

- 19941006:	Article 81 (Conspiracy with another to commit an offense under Article 123, to wit, forge a signature upon two government checks in the amount of $1,485.44 and $373.00) 
	Article 121 (Stole two government checks in the amounts of $1,485.44 and $373.00, the property of another Sailor)  
	Sentence Adjudged: Reprimand, BCD, , , 4 months confinement (941006-941227)
	Convening Authority Action: (04 Jan 1995) - Only so much of the sentence as provides for forfeitures of pay for 4 months, reduction in rate to E-1, confinement for 4 months, and Bad Conduct Discharge from the Naval Service is approved, and, except for the Bad Conduct Discharge, is ordered executed.  That part of the sentence extending to confinement in excess for 3 months is suspended.      

Administrative Corrections to the Applicant’s DD 214

The NDRB did note administrative error(s) on the original DD Form 214:

  “COURT-MARTIAL”
	  “94OCT06-94DEC27”
	
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:	
					Verbatim Record of Trial by CM
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 503, Equity.

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

Applicant’s Issues

Decisional issues: (1) The Applicant seeks clemency, contending that the discharge was inequitable given the delay in trial of approximately two years between being charged and the trial in which time he clearly demonstrated his rehabilitative potential and overall honorable service in mitigation of the actual misconduct.  (2) The Applicant contends that clemency is warranted by his full cooperation with the Naval Criminal Investigative Service (NCIS) and his acceptance of his wrongdoing and pleading of guilty.  (3) Furthermore, the Applicant contends that his post-service conduct is worthy of consideration to show that his misconduct was an aberration in his overall character.

Decision

Date:  20120328	         	Location:  Washington D.C.	Representation:  

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

Discussion

The NDRB, under its responsibility to examine the propriety and equity of an Applicant’s discharge, is authorized to change the character of service and the reason for discharge if such change is warranted.  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 18 on a four-year enlistment contract under a guarantee for training in the Aviation Apprenticeship program.  The Applicant’s enlistment record reflects entry into military service without any waivers to enlistment and induction standards.  The highest rank achieved by the Applicant during his enlistment was E-4/Aviation Storekeeper, Third Class Petty Officer.  The Applicant completed his first enlistment period Honorably, executing an immediate reenlistment for a second four years of obligated service.  During this second enlistment period, the Applicant’s record of service documents one Special Court-Martial for violations of the Uniform Code of Military Justice (UCMJ): Article 81 (Conspiracy - to forge government checks) and Article 121 (Larceny).  

The Applicant’s service record documents a punitive conviction and punishment, as adjudged by a Special Court-Martial, on 06 October 1994.  A qualified legal defense counsel represented the Applicant throughout the trial by Special Court-Martial process.  Given the facts of the case, the Special Court-Martial awarded the Applicant a Bad Conduct Discharge and confinement for a period of 4 months.  The Applicant had a Pre-Trial Agreement in place: He agreed to plead guilty before a Military Judge alone in exchange for a limitation on any adjudged confinement and forfeitures.  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’s final Bad Conduct Discharge was executed on 06 November 1995.  

Besides his DD Form 293, the Applicant provided four character reference letters attesting to his community service for consideration by the NDRB.

Decisional Issues (Clemency/Equity)  PARTIAL CLEMENCY WARRANTED.  (1) The Applicant contends that given the delay in trial of approximately two years between being charged and the trial occurring, he clearly demonstrated his rehabilitative potential and overall honorable service in mitigation of the actual misconduct.  (2) The Applicant contends that clemency is warranted by his full cooperation with NCIS and his acceptance of his wrongdoing and pleading of guilty.  (3) Furthermore, the Applicant contends that his post-service conduct is worthy of consideration to show that his misconduct was an aberration in his overall character.
Propriety -  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 Navy and Marine Corps Court of Criminal Appeals and the Court of Appeals of the Armed Forces.  As such, matters of propriety are not within the authority of the NDRB in relation to punishment as adjudged in a punitive trial by court-martial.  The NDRB, however, did conduct 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 prior period of honorable service with a reenlistment; however, the misconduct of record occurred in his original enlistment period but was not adjudicated until his current enlistment period.

Equity Issues 1 and 2 - The Applicant contends that the discharge was inequitable given the delay in trial of approximately two years between being charged and the trial occurring, during which he clearly demonstrated his rehabilitative potential and overall honorable service in mitigation of the actual misconduct.  The Applicant also contends that clemency is warranted by his full cooperation with NCIS and his acceptance of his wrongdoing and pleading of guilty.  The Applicant was referred to trial by court-martial for the theft of two government checks from a Sailor he was escorting during that Sailor’s final discharge process.  The Applicant then conspired with another Sailor to forge those two checks and cash them for their personal benefit and at the cost of the separating Sailor.  The Applicant agreed to cooperate with the NCIS investigation and pled guilty at court martial.  The military judge found the Applicant guilty of the offense as charged and awarded him the Bad Conduct Discharge, reduction to E-1, and to be confined for a period of 4 months.  In accordance with the Pre-Trial Agreement, all confinement in excess of 3 months was suspended and remitted without further action.  The NDRB reviewed all of the available records, supporting documents, facts, elements of discharge, and circumstances unique to this case.  Given the unique circumstances of the case, coupled with the nature of the misconduct and the Applicant’s post service conduct, the NDRB determined that the punishment was overly harsh and was not equitable, nor consistent with the characterization of discharge given others in similar circumstances.  As such, the NDRB determined that some form of relief was warranted.  Partial clemency granted. 

Equity Issue 3 - The Applicant contends that his post-service conduct is worthy of consideration in showing that his misconduct was an aberration in his overall character.  The NDRB considers 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.  The Applicant provided four letters of reference and documentation regarding his community service.  The Applicant should be aware submission of these items alone does not guarantee an upgrade from an unfavorable discharge as each discharge is reviewed, by the NDRB, on a case-by-case basis.  The Applicant seeks a change in the characterization of his service at discharge to Honorable or General (Under Honorable Conditions) discharge.  Characterization of service at discharge is recognition of the quality of a Sailor’s performance and conduct; it cannot be underestimated, as characterization of service serves as a goal for each Sailor and as a meaningful endorsement of their service to potential employers.  Most Sailors serve honorably; in fairness to them, commanders and separation authorities are tasked to ensure that service members receive no higher characterization than is due.  An Honorable characterization of service is the highest quality of characterization and is appropriate when the quality of a Sailor’s service has met the standards of accepted conduct and performance of duty for military personnel, or is otherwise so meritorious that any other characterization of service would be clearly inappropriate.  A General (Under Honorable Conditions) discharge is warranted when the quality of the member’s service has been honest and faithful but significant negative aspects of the member’s conduct or performance of duty outweighed the positive aspects of the member’s service record.  However, an Under Other Than Honorable Conditions discharge is warranted when a member engages in conduct involving one or more acts or omissions that constitute a significant departure from the conduct expected of members of the Naval Service.  After reviewing the Applicant’s issues, the supporting documentation, and the evidence of record contained in the verbatim record of trial, the NDRB discerned an inequity in the characterization of service and determined that some form of clemency was warranted.  As such, the NDRB determined that the Applicant’s misconduct of record was conduct involving one or more acts or omissions that did constitute a significant departure from the conduct expected of members of the Naval Service.  As such, by a vote of 3-2, the NDRB determined that the characterization of service shall change to Under Other Than Honorable Conditions.  Partial clemency granted.  Full relief to Honorable or General (Under Honorable Conditions) was not granted due to the seriousness of the misconduct.      

Summary:  After a thorough review of the available evidence, to include the Applicant’s summary of service,  record entries, the verbatim record of trial by Special Court-Martial, and the discharge process, the NDRB found that some form of clemency was warranted.  Therefore, the awarded characterization of service shall  UNDER OTHER THAN HONORABLE CONDITIONS, however, the narrative reason for separation shall remain COURT MARTIAL.  As the Applicant has now exceeded the 15-year review period authorized for the NDRB review process, he is no longer eligible for review by the NDRB.  The Applicant must petition the Board for Correction of Naval Records, 701 South Courthouse Road, Suite 1001, Arlington, VA 22204-2490, for any further review using a DD Form 149.  Further information is also available online at http://www.donhq.navy.mil/bcnr/bcnr.htm. 

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), 701 South Courthouse Road, Suite 1001, Arlington, VA 22204-2490 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