ex-LSSR, USN

Current Discharge and Applicant’s Request

Application Received: 20151123
Characterization of Service Received:   
Narrative Reason for Discharge:   
Separation Code: [JJD/901]
Reentry Code:  
Authority for Discharge:   MILPERSMAN 

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

Summary of Service

Prior Service:
Inactive:	USNR (DEP)	20060831 - 20060911  	Active:	

Period of Service Under Review:

Date of Current Enlistment:  20060912	Age at Enlistment:  
Period of Enlistment:   Years   Extension 
Date of Discharge:  20120514	Highest Rank/Rate:  LSSN
Length of Service:   Year(s)     Month(s)   18 Day(s)
Education Level:  	AFQT:  53

Evaluation Marks:	Performance:  2.5 (2)	Behavior:  1.5 (2)	OTA:  2.00

Awards and Decorations (per DD 214):	  

NJP:  

- 20081126:	Article 
	Article 
	Article 134 (General article) wrongful alteration of AFID 
	Awarded:       Suspended:      

- 20081222:	Article  1530, 20081216 to 0730, 20081219, 2 days
	Awarded:       Suspended:      

- 20100520:	Article 
	Article 
	Article 
	Awarded:       Suspended:      

- 20100608:	Article  3 specifications
	Specification 1: Listening to MP3 while on restriction
	Specification 2: Smoking in fan room while on restriction
	Specification 3: Not in rack at taps while on restriction
	Awarded:       Suspended:      

SCM:  

SPCM:  

- 20101013:	Article 81 (Conspiracy) on or about 20100708
	Article  20100629-20100727, 28 days
	Article  on or about 20100714
	Article  on or about 20100709 to 20100714
	Article 134 (General article) breaking restriction on or about 20100629
	Sentence: CONF 10 months (Pre-trial CONF: 20100727-20101013, 78 days)  
CA: Sentence is approved and except for that part of the sentence extending to BCD will be executed, but the execution of that part of the sentence adjudging confinement in excess of 3 months is suspended for the period of confinement served plus twelve (12) months thereafter, at which time, unless sooner vacated, the suspended portion will be remitted without further action.    

CC:  

Retention Warning Counseling:  

20061018:	For numerous negative entries on your Recruit Personnel Data Record (Hard Copy) to include: failure to adapt and conform to Navy standards, lack of motivation and respect for senior authority and fellow recruits, failure to follow instructions from Recruit Division Commander, failure to obey the rules and regulations at Recruit Training Command, sub-standard performance and overall lack of military bearing.  
           
20061114:	For numerous negative entries on your Recruit Personnel Data Record (Hard Copy) to include: violation of recruit-to-recruit Standard of Conduct (RTCINST 5370.2), recruit-to-recruit contact, and sub-standard performance.  

Administrative Corrections to the Applicant’s DD 214

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

                      “MILPERSMAN ”
	
The NDRB will recommend to the Commandant of the Marine Corps or Commander, Navy Personnel Command that the DD 214 be corrected as appropriate.

Types of Documents Submitted/reviewed

	DD 214:		Service/Medical Record:		Other Records:	
	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:	
 
Types of Witnesses Who Testified

	Expert:  			Character:    

	Witness E-1:			Witness C-1:  Kelly Osifo, fellow servicemember	
				Witness C-2:  Raphael Rigaud, friend
				Witness C-3:  Buki Kalejaiye, sister

Pertinent Regulation/Law

A.  Paragraph 1105, DISCHARGE ADJUDGED BY SENTENCE OF COURT-MARTIAL, of the Marine Corps Separation and Retirement Manual, (MCO P1900.16F), effective 1 September 2001 until Present.

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.

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

Applicant’s Issues

1.  The Applicant is seeking clemency to reduce the severity of his discharge.
2.  The Applicant contends that his post-service conduct warrants consideration for an upgrade.  

discussion

Date:  20161115	                            Location:  WASHINGTON D.C.	Representation:  

The Naval Discharge Review Board (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 Board presumes regularity in the conduct of governmental affairs unless there is substantial credible evidence to rebut the presumption, to include evidence submitted by the Applicant.  The Board completed a thorough review of the circumstances that led to the discharge and the discharge process to ensure the pertinent standards of equity and propriety were met.  

The Applicant's record of service included:

  for  of the Uniform Code of Military Justice (UCMJ): 
- Article 92 (Failure to obey order, regulation), Article 121 (Larceny), and Article 134 (General article) wrongful 
alteration of AFID
    - Article 86 (Absence without leave, etc.)
    - Article 86 (Absence without leave, etc.), Article 92 (Failure to obey order, regulation), and Article 107 (False official 
    statements)
    - Article 92 (Failure to obey order or regulation), 3 Specifications

  Special Court-Martial for  of the Uniform Code of Military Justice (UCMJ): 
		 - Article 81 (Conspiracy)	
     - Article 86 (Absence without leave, etc.)
     - Article 87 (Missing movement)
     - Article 121 (Larceny)
     - Article 134 (General article) breaking restriction
 
The Applicant’s record documents a punitive conviction and punishment, as adjudged by Special Court-Martial on 13 October 2010.  The case was submitted for appellate review to the Navy-Marine Corps Court of Criminal Appeals and the findings were affirmed on 9 May 2012.  A Bad Conduct Discharge is warranted when a member engages in conduct prejudicial to good order and discipline and is found guilty of such at a Special or General Court Martial.  Certain serious offenses warrant separation from the Naval Service to maintain proper order and discipline.  Violation of Articles 81, 86, 87, 121, and 134 are just such offenses.  

Issue 1:  The Applicant is seeking clemency to reduce the severity of his discharge.  In reviewing discharges, the Naval 
Discharge Review Board (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.  The Applicant’s case was considered 
under the pertinent standards of equity to determine if any factors in this particular case merited clemency.  The NDRB found 
the evidence of record did not contain sufficient mitigating or extenuating factors to offset the seriousness of the offenses for 
which the discharge was awarded.  

Issue 2:  The Applicant contends that his post-service conduct warrants consideration for an upgrade.  The NDRB is authorized 
to consider post-service factors in the re-characterization of a discharge.  However, there is no law, or regulation, that provides 
that an unfavorable discharge may be upgraded based solely on the passage of time or good conduct in civilian life subsequent 
to leaving the service.  Normally, to permit relief, a procedural impropriety or inequity must have been found to exist during 
the period of enlistment in question.  The Applicant did provide a statement on the DD Form 293 as well as character witnesses, 
education and training certificates, and proof of custody for post-service consideration.  However, post-service conduct does not 
guarantee an upgrade from an unfavorable discharge as each discharge is reviewed by the Board on a case by case basis to 
determine if post-service conduct provides a basis for a more thorough understanding of the performance of the Applicant during 
the period of service that is the subject of the discharge review.  The NDRB found that the Applicant’s post-service 
documentation was not compelling enough to overcome in-service misconduct and therefore the characterization of the 
Applicant’s discharge should remain unchanged. 

decision

After a thorough review of the available evidence, to include the Applicant’s issues, summary of service,  record entries, and discharge process, the Board found the discharge was proper and equitable at the time of discharge.  Therefore, the awarded characterization of service shall  BAD CONDUCT, the narrative reason for separation shall  COURT-MARTIAL with a corresponding separation code of JJD/901, and the reentry code shall  RE-4.  The Applicant is not eligible for further reviews by the NDRB.  The Applicant may petition the Board for Correction of Naval Records, 701 South Courthouse Road, Suite 1001, Arlington, VA 22204-2490 for further review 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/.  More information is available at http://www.secnav.navy.mil/mra/CORB/pages/ndrb/default.aspx.

Additional Reviews: After a document review has been conducted, former members are eligible for a personal appearance or telephonic 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, or http://www.secnav.navy.mil/mra/bcnr/Pages/default.aspx 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: Effective 6 February 2015, the NDRB is authorized to change a NDRB Applicant’s Reenlistment Code if related to an accompanying change in discharge characterization or narrative, but this authority is strictly limited to those cases where an applicant’s narrative reason or characterization of discharge is changed and that change warrants revision of the previously issued reenlistment code.  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-Traumatic Stress Disorder and/or Traumatic Brain Injury: For all claims involving PTSD and/or TBI, the NDRB’s review implemented the guidance set forth in the SECDEF Memorandum of 3 September 2014 (Supplemental guidance to Military Boards for Correction of Military/Naval Records Considering Discharge Upgrade Requests by Veterans Claiming Post Traumatic Stress Disorder).  In accordance with U.S. Code, Title X, Section 1553 (d)(1) & d(2), the NDRB included a member who is a physician, clinical psychologist, or psychiatrist and accorded the case sufficient priority to achieve an expedited resolution and a final decision.

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.

Military Sexual Trauma: The Department of Veterans Affairs (VA) uses the term "military sexual trauma" (MST) to refer to experiences of sexual assault or repeated, threatening sexual harassment experienced while on federal active duty, active duty for training, or inactive duty training.  To get confidential one-on-one help please contact the MST Coordinator at your nearest VA Medical Center or Call Safe Helpline at 1-877-995-5247 or visit www.mentalhealth.va.gov/msthome.asp.

Reporting Military Sexual Trauma: To report a military sexual trauma, you can make an anonymous report to the Naval Criminal Investigative Service (NCIS) by Text or Online.  The NCIS Tip Line provides service members, veterans and civilians a safe, discreet and ANONYMOUS option to report criminal and force protection threats within the USN and USMC without concerns of retaliation.  To report a crime by Text: Text  274637 (CRIMES); Type “NCIS” at the top of the message; and include as much detail as possible to ensure your tip can effectively be investigated.  To send your ANONYMOUS Tip via the online, go to https://www.tipsubmit.com/webtipsNAV.aspx?AgencyID=840.

Suicide Prevention: Veterans in emotional crisis or their loved ones can call the free and confidential Veterans Crisis Line at 1-800-273-8255 (then press 1); or chat online at http://www.veteranscrisisline.net, or send a text message to 838255 to connect with a caring, qualified Veteran Affairs Responder who can deal with any immediate crisis.