ex-SR , USN

Current Discharge and Applicant’s Request

Application Received: 20150114
Characterization of Service Received:  (per DD 214) BAD CONDUCT
Narrative Reason for Discharge:  (per DD 214) COURT-MARTIAL
Reenlistment Code:  RE-4
Authority for Discharge:  (per DD 214) MILPERSMAN 5815-010 [COURT-MARTIAL]

Applicant’s Request:	Characterization change to:	HONORABLE
	Narrative Reason change to:	NONE REQUESTED

Summary of Service

Prior Service:
Inactive:	USNR (DEP)	19961216 - 19961219  COG	Active:	NONE

Period of Service Under Review:

Date of Current Enlistment:  19961220	Age at Enlistment:  20
Period of Enlistment:  4 Years  NO Extension
Date of Discharge:  20020510	Highest Rank/Rate:  SR
Length of Service:  05 Year(s)   04  Month(s)   21 Day(s)
Education Level:  12	AFQT:  31
Evaluation Marks:	Performance:  2.0 (1)	Behavior:  2.0 (1)	OTA:  2.33

Awards and Decorations (per DD 214):	AFEM

Periods of CONF:  NONE

NJP:  1

- 19980804:	NFIR 
	[Extracted from page 3 entry]
	
SCM:  1

- 20000217:	Article 86 (Absence without leave) 4 specifications
	Specification 1:  19981023-19981027, 11 days
	Specification 2:  19981102-19981118, 16 days
	Specification 3:  19981207-19981208, 31 days
	Specification 4:  19990101-19991119, 322 days
	Article 87 (Missing movement; O/A 19990113)
	Sentence: RESTR RIR E-1 FOP
	
SPCM:  1

- 20001003:	Article 86 (Absence without leave; 20000622-20000830, 69 days)
	Sentence: BCD CONF 40 days FOP
	[20001227 CA ordered sentence executed except BCD and suspended CONF in excess of his pretrial confinement (20000831-20001002) per pretrial agreement.  Appellate Review completed 20020425]

CIVIL ARREST:  1

- 19990918:	Charges:  Apprehended by San Diego CA Police Department for Domestic Assault.  Released from civil confinement on 19991119 to TPU NAS San Diego.

CC:  NONE

Retention Warning Counseling:  NONE

Administrative Corrections to the Applicant’s DD 214

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

	Block 29, Dates of Time Lost During This Period, should read “19980321-19980323 (2), 19980505-19980508 (3), 19980717-19980720 (3), 19981023-19981027 (11), 19981102-19981118(16), 19981207-19981208 (31), 19990101-19991119(322), 20000622-20000830(69), 20000831-20001002 (32), 20001021-20020510(565)”
	Block 12c, Net Active Service This Period, should read: “02 06 03”
	
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.  The Naval Military Personnel Manual, (NAVPERS 15560C), Change 22, effective 15 December 1998 to 
21 August 2002, 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.

C.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part IV, Para 403m(7)(b), Presumption Concerning Court-Martial Specifications.

D.  The Manual for Courts-Martial authorizes the award of a punitive discharge if adjudged as part of the sentence upon conviction by a special or general court-martial for violation of the UCMJ, Article86 (Absence without leave).

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

Applicant’s Issues

1.	The Applicant requests a copy of his DD214 and medical records.
2.    The Applicant summits youth and immaturity as mitigation for his character of discharge and contends that the bad conduct discharge has prevented career moves and should not affect the rest of his life.

Decision

Date:  20150618	       DOCUMENTARY REVIEW	Location:  Washington D.C.	Representation:  NONE

By a vote of 5-0 the Characterization shall remain BAD CONDUCT.
By a vote of 5-0 the Narrative Reason shall remain COURT-MARTIAL.

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.  The Applicant’s record of service one nonjudicial punishment (NJP) for violation of the Uniform Code of Military Justice (UCMJ): Article 86 (Absence without leave); one summary court-martial (SCM) for violations of the UCMJ:  Article 86 (Absence without leave) and Article 87 (Missing movement; and one special court-martial (SPCM) for violation of the UCMJ:  Article 86 (Absence without leave).  The Applicant’s service record documents a punitive conviction and punishment, as adjudged by a Special Court-Martial on 03 October 2000.  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, forfeiture of $500.00 pay per month for one month, and confinement for a period of 40 days.  The convening authority approved the sentence as adjudged on 27 December 2000.  The case was submitted for review to the U.S. Navy-Marine Corps Court of Criminal Appeals and the findings were affirmed on 25 April 2002.  

Issue 1:  (Nondecisional) The Applicant requests a copy of his DD214 and medical records.  The NDRB is not authorized to provide copies of service or medical records and other documents that are under the cognizance of another government department, office, or activity.  The Applicant should refer to the Veterans Service Records section at http://www.archives.gov.

Issue 2:  (Decisional) (Equity)  RELIEF NOT WARRANTED.  The Applicant summits youth and immaturity as mitigation for his character of discharge and contends that the bad conduct discharge has prevented career moves and should not affect the rest of his life.  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 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.  While the Applicant may feel his youth and immaturity were the underlying causes of his misconduct, the record clearly reflects his willful misconduct and demonstrated he was unfit for further service.  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.  Relief denied.

Summary:  After a thorough review of the available evidence, to include the Applicant’s summary of service, 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 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 his 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 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