ex-FR, USN

Current Discharge and Applicant’s Request

Application Received: 20150917
Characterization of Service Received:   
Narrative Reason for Discharge:   
Reenlistment Code:  
Authority for Discharge:   MILPERSMAN 

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

Summary of Service

Prior Service:
Inactive:	USNR (DEP)	20000125 - 20000125  	Active:	

Period of Service Under Review:

Date of Current Enlistment:  20000126	Age at Enlistment:  
Period of Enlistment:   Years   Extension 
Date of Discharge:  20041021	Highest Rank/Rate:  FA
Length of Service:   Year(s)     Month(s)   26 Day(s)
Education Level:  	AFQT:  42
Evaluation Marks:	Performance:  3.0 (1)	Behavior:  3.0 (1)	OTA:  3.0

Awards and Decorations (per DD 214):	NONE

NJP:  

- 20010413:	Article  2 specifications
	Specification 1:  Failing to clean the bilge as ordered
	Specification 2:  Derelict in the performance of duties by failing to stand fire room messenger watch on 20010411
	Awarded:    (3 days)  Suspended:  

- 20011101:	Article  5 specifications
	Specification 1:  Unauthorized absence from unit from 0700, 20011001 – 1550, 20011001
	Specification 2:  Unauthorized absence from “E” Division Office at 1600, 20011001
	Specification 3:  Unauthorized absence from “E” Division Office at 0400, 20011002
	Specification 4:  Unauthorized absence from unit from 0700, 20011003 – 0800, 20011003
	Specification 5:  Unauthorized absence from unit from 0700, 20011004 – 0900, 20011004
	Awarded:   Suspended:  

- 20011130:	Article  2 specifications
	Specification 1:  On or about 0630, 20011129, to wit:  Restricted Man’s Muster
	Specification 2:  Unauthorized absence from appointed place of duty at or about 1625, 20011129, to wit:  Restricted Man’s Muster
	Awarded:  (3 days)  Suspended:  

SCM:  

SPCM:  

- 20020920:	Article  2 specifications
	Specification 1:  20020429-20020620, 53 days
	Specification 2:  20020901
	Article 
	Article 
	Article 112a (Wrongful use, possession, etc., of controlled substances; marijuana, 41 ng/ml)
	Article  2 specifications
	Specification 1:  On or about 20020831, break restriction
	Specification 2:  On or about 20020911, wrongfully and falsely alter a military identification card
	Sentence: CONF 90 days (20020902-20021116, 76 days)  

CC:  

Retention Warning Counseling:  

- 20010414:	For failure to obey a lawful order given by MM2 B____ on 20010413 and derelict in the performance of your duties by failing to stand fire room messenger watch on 20010411.

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:	

Types of Witnesses Who Testified

	Expert:		Character:	

Pertinent Regulation/Law

A.  The Naval Military Personnel Manual, (NAVPERS 15560C), Change 8, effective 9 September 2004 until 
18 September 2005, Article 5815-010, EXECUTING A DISHONORABLE OR BAD CONDUCT DISCHARGE.

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 contends that his discharge should be upgraded as he did not receive a medical evaluation prior to his separation due to the nature of his discharge.

Decision

Date:  20160407		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 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.  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 record of service included  NAVPERS 1070/613 (Page 13) warning,   for  of the Uniform Code of Military Justice (UCMJ): Article 86 (Absence without leave, seven specifications) and Article 92 (Failure to obey order or regulation, two specifications); and   for  of the UCMJ:  Article 86 (Absence without leave, two specifications), Article 87 (Missing movement, one specification), Article 92 (Failure to obey order or regulation, one specification), Article 112a (Wrongful use, possession, etc., of controlled substances; marijuana, 41 ng/ml; one specification), and Article 134 (General article, two specifications).  Additionally, the Applicant’s record of service documented he was in an absence without leave period without formal punishment over the following five periods:  4 September 2002 for nine hours and nine minutes, 8 September 2001 for seven hours, 29 to 31 December 2001 for two days, 1 to 10 January 2002 for eight days, and 23 to 30 August 2002 for six days.  The Applicant  a pre-service drug waiver prior to entering the Navy.  Based on the Applicant's conviction and sentence at a special court-martial, he was subjected to a forfeiture of pay, confinement, and separation with a Bad Conduct characterization of service in accordance with the parameters of his pretrial agreement of 17 September 2002.  A qualified legal defense counsel represented the Applicant throughout the trial by Special Court-Martial process.  Clemency matters were submitted by the Applicant’s defense on 31 December 2002.  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 on 20 May 2004.  Subsequently, the Navy Marine Corps Appellate Leave Activity ordered the Bad Conduct Discharge executed on 20 September 2004.

:  (Decisional) ()  .  The Applicant contends that his discharge should be upgraded as he did not receive a medical evaluation prior to his separation due to the nature of his discharge.  The government enjoys a presumption of regularity in the conduct of its affairs.  The Applicant bears the burden of overcoming this presumption through the presentation of substantial and credible evidence to support his issue.  After an exhaustive review of the Applicants service record and record of trial, the NDRB discerned that the Applicant was properly separated in accordance with the sentenced adjudged at his SPCM.  No medical issues were noted during his confinement physical that would have merited special consideration during his separation.  Additionally, the Applicant only provided an unsupported statement for the board to consider with regard to his medical separation screening.  The Applicant’s statements alone do not overcome the government’s presumption of regularity in this case.  Clemency denied.

Summary:  After a thorough review of the available evidence, to include the Applicant’s summary of service,  record entries, and discharge process, the Board found   Therefore, the awarded characterization of service shall remain BAD CONDUCT and the narrative reason for separation shall remain COURT-MARTIAL.

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 for additional information.

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, 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-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