ex-RMSR, USN

Current Discharge and Applicant’s Request

Application Received: 20101222
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)	19921211 - 19921216  	Active:	

Period of Service Under Review:
Date of Current Enlistment:  19921217	Age at Enlistment:  
Period of Enlistment:   Years   Extension
Date of Discharge:  19960613	Highest Rank/Rate:  RMSN
Length of Service:   Year(s)     Month(s)   27 Day(s)
Education Level:  	AFQT:  35
Evaluation Marks:	Performance:  3.8 (1)	Behavior:  3.8 (1)	OTA:  3.80

Awards and Decorations (per DD 214):	

NJP:  

- 19940611:	Article  (UA - failure to go to appointed place of duty, 2 specifications)
	Specification 1: 0001, 19940510
	Specification 2: 2300, 19940501
	Awarded:    Suspended:  

SCM:  

SPCM:  

- 19950505:	Article  (Absence without leave - unauthorized absence, 8 specifications)
	Specification 1: Absented himself from his unit without authority 19950314 to 19950417 (34 days)
	Specification 2: Failure to go to appointed place of duty - Morning muster on 19940930
	Specification 3: Absented himself from his unit without authority 19941006-19941010 (4 days)
	Specification 4: Absented himself from his unit without authority 19941011-19941012 (1 day)
	Specification 5: Absented himself from his unit without authority 19941026-19941124 (29 days)
	Specification 6: Failure to go to appointed place of duty
	Specification 7: Absented himself from his unit without authority 19941216-19950110 (25 days)
	Specification 8: Absented himself from his unit without authority 19950112-19950121 (9 days)
	Article  (Missing ship’s movement, 2 specifications)
	Specification 1: 19950110
	Specification 2: 19950314
	Article  (Insubordinate conduct toward warrant, noncommissioned, petty officer, 2 specifications)
	Specification 1: Willfully disobey by refusing to identify himself and present his ID card as directed
	Specification 2: Willfully disobey by failure to shave and get a proper haircut on 19941126
	Article  (Willfully disobey a lawful regulation or order, 18 specifications)
	Specification 1: Wrongfully possessing a lock blade knife with a blade longer than 6 centimeters
	Specification 2: Wrongfully operating a motor vehicle without the required license and without the owner’s written permission
	Specification 3: Wrongfully missing Restricted Man’s Muster on 1230, 19950122
	Specification 4: Wrongfully missing Restricted Man’s Muster on 0645, 19950123
	Specification 5: Wrongfully missing Restricted Man’s Muster on 0645, 19950124
	Specification 6: Wrongfully missing Restricted Man’s Muster on 1230, 19950124
	Specification 7: Wrongfully missing Restricted Man’s Muster on 1230, 19950125
	Specification 8: Wrongfully missing Restricted Man’s Muster on 0645, 19950130
	Specification 9: Wrongfully missing Restricted Man’s Muster on 1230, 19950131
	Specification 10: Wrongfully missing Restricted Man’s Muster on 1830, 19950131
	Specification 11: Wrongfully missing Restricted Man’s Muster on 2130, 19950131
	Specification 12: Wrongfully missing Restricted Man’s Muster on 1230, 19950201
	Specification 13: Wrongfully missing Restricted Man’s Muster on 2130, 19950201
	Specification 14: Wrongfully missing Restricted Man’s Muster on 1230, 19950202
	Specification 15: Wrongfully missing Restricted Man’s Muster on 1830, 19950202
	Specification 16: Wrongfully missing Restricted Man’s Muster on 0645, 19950205
	Specification 17: Wrongfully missing Restricted Man’s Muster on 2130, 19950205
	Specification 18: Wrongfully missing Restricted Man’s Muster on 0645, 19950206
	Article  (Assault - threaten bodily harm to 4 service members with a knife)
	Article  (Incapacitated for the performance of duty due to overindulgence of alcohol)
	Sentence Adjudged: BCD, , ,  4 MONTHS (pretrial: 19950417-19950504 (18 days) and 19950505-19950727 (84 days).  
	Convening Authority Action: The sentence is approved and, except for that part of the sentence extending to a Bad Conduct discharge, will be executed.  The Pre-Trial Agreement in place had no impact on the sentence as adjudged.    

Retention Warning Counseling:  

- 19940613:	For two specifications of unauthorized absence.

Administrative Corrections to the Applicant’s DD 214

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

	 Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, should read:  “NATIONAL DEFENSE SERVICE MEDAL, SEA SERVICE DEPLOYMENT RIBBON, SOUTHWEST ASIA SERVICE MEDAL, BATTLE “E’ RIBBON”
	  “COURT-MARTIAL”
	  “94OCT06 TO 94OCT10, 94OCT11, 94OCT26 TO 94NOV24, 94DEC16 TO 95JAN10, 95JAN12 TO 95JAN21, 95MAR14 TO 95APR16”

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, Para 503, Equity.

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

Applicant’s Issues

Issue 1: The Applicant seeks clemency by an upgrade in the characterization of his service at discharge in order to facilitate employment opportunities.

Issue 2: The Applicant seeks clemency, contending that his characterization of service was inequitable; his youth and immaturity at the time led to poor judgment and is a mitigating factor to his misconduct of record.

Decision

Date:  20120412	       	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, 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.  Matters of propriety are addressed through the Courts of Appeal as a function of the Applicant’s legal rights.    

The Applicant’s service record indicates he entered military service at age 21 on a four-year enlistment contract with no extensions.  The highest rank achieved by the Applicant during his enlistment was E-3/Radioman.  The Applicant’s service record contains one nonjudicial punishment for violation of Article 86 (Absence without leave) of the Uniform Code of Military Justice (UCMJ); the Applicant was charged with two specifications of unauthorized absence for failing to go to his appointed place of duty.  Additionally, the record of service documents that he was formally counseled regarding this misconduct and his retention in the Naval Service (NAVPERS 1070/613 Retention-counseling warning dated 19940613).  Due to continued misconduct, the Applicant was also subject to a punitive conviction and punishment as adjudged by a Special Court-Martial on 05 May 1995.  The Applicant was subject to trial by court-martial for multiple violations of Article 86 (Unauthorized absence, 8 specifications - to include absences for 34 days, 4 days, 1 day, 29 days, 25 days, and 9 days), Article 87 (Missing movement, 2 specifications), Article 91 (Insubordinate conduct, 2 specifications), Article 92 (Failure to obey orders or regulations - 18 specifications), Article 128 (Assault with a deadly weapon), and Article 134 (Incapacitated for the performance of duty).

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 rank to E-1, and confinement for a period of 4 months.  The Applicant was tried in accordance with a signed pre-trial agreement in which he agreed to plead guilty, provide a stipulation of facts related to the charges, and accept trial by judge alone in exchange for leniency on matters of sentencing.  The case was submitted for review to the U.S. Navy-Marine Corps Court of Criminal Appeals without 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.  The Applicant’s final discharge was effective on 13 June 1996.     

Issue 1:  (Nondecisional )  The Applicant seeks an upgrade to his discharge characterization of service (clemency) in order to facilitate employment opportunities.  There is no requirement, or law, that grants re-characterization solely on the issue of facilitating employment opportunities.  Additionally, the NDRB has no authority to upgrade a discharge for the sole purpose of enhancing educational opportunities or providing access to Department of Veterans Affairs (VA) benefit programs.  Regulations limit the NDRB’s review solely to a determination of the equity of the discharge when determining clemency for a sentence adjudged by court-martial.  As such, this issue does not provide a foundation upon which the NDRB may grant relief.  

Issue 2: (Decisional) (Clemency/Equity)  CLEMENCY NOT WARRANTED.  The Applicant seeks clemency, contending that his characterization of service was inequitable; his youth and immaturity at the time led to poor judgment and is a mitigating factor to his misconduct of record.  The Applicant’s service record documents a period of service of approximately 2 years and 5 months before being sentenced to a Bad Conduct Discharge by a Special Court-Martial Judge.  In this period, the Applicant amassed 8 periods of unauthorized absence equating to 102 days of lost time and consistently violated orders and regulations put in place to address his misconduct. The Applicant’s misconduct clearly documents a pattern of deliberate and willful misconduct related to unauthorized absence and illegal drug use 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, coupled with the need to ensure good order and discipline of the service, the Command referred the Applicant’s excessive and conscious misconduct for trial by Special Court-Martial.  The stated misconduct resulted in the awarding of a punitive Bad Conduct Discharge and confinement for 4 months.

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 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 repetitive and deliberate misconduct warranted processing for administrative separation, regardless of grade or time in service.  Likewise, unauthorized absence in excess of 30 days is considered a serious offense and warrants administrative separation or punitive discharge.  These charges usually results in an unfavorable characterization of discharge or, at a maximum, a punitive discharge and possible confinement if adjudicated and awarded as part of a sentence by a Special or General Court-Martial.  The command did not pursue the more lenient administrative discharge but opted instead for a punitive discharge.  The NDRB determined an upgrade would be inappropriate and that clemency was not warranted.

The pattern of documented unauthorized absences and 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.  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 length 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), 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