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

FOR OFFICIAL USE ONLY

 ex-BMSR, USN
Docket No. ND05-00010

Applicant’s Request

The application for discharge review was received on 20040930.  The Applicant requests the Discharge Characterization of Service received at the time of discharge be changed to general (under honorable conditions).  The Applicant requests a documentary record discharge review.  The Applicant did not designate a representative on the DD Form 293.  Subsequent to the application, the Applicant obtained representation by Disabled American Veterans. 

Decision

A documentary discharge review was conducted in Washington, D.C. on 20060209.  After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, no impropriety or inequity in the characterization of the Applicant’s service was discovered by the NDRB.  The Board’s vote was unanimous that the character of the discharge shall not change.  The discharge shall remain as a bad conduct discharge by reason of court-martial conviction.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application: 

“In July of 1994 my right leg was amputated below the knee-the result of a motorcycle accident.  I was still on active duty when this accident occurred.  I wish to have my discharge upgraded so I can obtain VA medical care.”

Additional issues submitted by Applicant’s counsel/representative (Disabled American Veterans):

“Dear Chairperson:

After a review of the Former Service Members (FSM) DD Form 293 Application for the Review of Discharge or Dismissal from the Armed Forces of the United States and all of evidence assembled for review, we continue to note the contention of the appellant in his request for a discharge upgrade of his current Bad Conduct discharge to General Under Honorable Conditions.

The FSM served on active service from April 18, 1989 to October 6, 1995 at which time he was discharged due to Court-Martial conviction. 

The FSM requests clemency in the determination of an upgrade of his current discharge. He contends that a change of discharge status is required to obtain disability assistance with the treatment of his service incurred disability from the Department of Veterans Affairs.

This creates a need for a review of the application of the standard, for the Board to determine that the applicant’s discharge was improper. The Board will determine which reason for discharge should have been assigned based upon the facts and circumstances before the Board, including the service regulations governing the reasons for discharge at that time, to determine whether relief is warranted. See, SECNAVIST 5420.174 D, Sect. 407, part 3.

As the representative, we ask that consideration be given to equitable relief, as this is a matter that involves a determination whether a discharge should be changed under the equity standards, to include any issue upon which the applicant submits to the Board’s discretionary authority, under SECNAVIST 5420.174D.

We ask for the Board’s careful and sympathetic consideration of all the evidence of record used in rendering a fair and impartial decision.  These issues do not supersede any issues previously submitted by the applicant.”

Respectfully,
K_L. G_
Documentation

In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:

Leave Request
Letter from Applicant

PART II - SUMMARY OF SERVICE

Prior Service (component, dates of service, type of discharge):

	Inactive: USNR (DEP)	19890410 – 19890417		COG
	Active:   USN 			19890418 – 19930715		HON

Period of Service Under Review:

Date of Enlistment:  19930716		Date of Discharge:  19951006

Length of Service (years, months, days):

	Active:    02  02  20  (Does not exclude lost time.)
	Inactive:  None

Time Lost During This Period (days):

	Unauthorized absence:  26 days
	Confinement:		  none

Age at Entry:  27

Years Contracted:  4 

Education Level:  12				AFQT:  44

Highest Rate:  BM3

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:   NA*		Behavior:  NA*		OTA:  NA*

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214):  Humanitarian Service Medal, Coast Guard SOS Ribbon, National Defense Service Medal, Southwest Asia Service Medal, Sea Service Deployment Ribbon, Letter of Commendation, Navy “E” Ribbon.

* Not Available

Character, Narrative Reason, and Authority of Discharge (at time of issuance):

BAD CONDUCT/COURT MARTIAL CONVICTION, authority: NAVMILPERSMAN, Article 3640420.

Chronological Listing of Significant Service Events: 

930716:	Reenlisted this date for a term of 4 years.

931004:	Applicant to unauthorized absence at 0715 on 931004.

931006:	Applicant from unauthorized absence at 1815 on 931006 (2 days/returned).

931022:	NJP for violation of UCMJ, Article 86: Unauthorized absence from place of duty.
Violation of UCMJ, Article 92: Disobeying a lawful order.
	Award:  Forfeiture of ½ pay per month for 1 month, restriction and extra duty for 14 days, reduction to E-2.  No indication of appeal in the record.

931025:	Retention Warning:  Advised of deficiency (Article 86: Unauthorized Absence from place of duty; Article 92: Disobeying a lawful order.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

931119:	Applicant to unauthorized absence at 0715 on 931119.

931121:	Applicant from unauthorized absence at 0730 on 931121 (2 days/returned).

931126:	NJP for violation of UCMJ, Article 86: Unauthorized absence from place of duty.
	Award:  Forfeiture of ½ pay per month for 1 month, restriction and extra duty for 14 days, reduction to E-1.  No indication of appeal in the record

931204:	Applicant to unauthorized absence at 0600 on 931204.

931226:	Applicant from unauthorized absence at 0005 on 931226 (22 days/returned).

931228:	NJP for violation of UCMJ, Article 86: Unauthorized absence.
Violation of UCMJ, Article 134: Restriction breaking.
	Award:  Forfeiture of ½ pay per month for 2 months, restriction and extra duty for 45 days.  No indication of appeal in the record

931229:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct as evidenced by all punishments under the UCMJ in your current enlistment.

931229:	Applicant advised of rights and having elected not to consult with counsel, elected to waive all rights except the right to submit statements on own behalf either verbally or in writing and to obtain copies of the documents used to support the basis for the separation.

940114:	Commanding Officer, USS BRISCOE (DD 977) recommended discharge with a general (under honorable conditions) by reason of misconduct due to a pattern of misconduct as evidenced by all punishments under the UCMJ in your current enlistment.  Commanding Officer’s comments:  “As noted in paragraph one there is a clear pattern of misconduct in the case of BMSR D_.  He has not responded positively to corrective action.  Accordingly, he is recommended for an administrative separation and a General characterization.”

940124- 	Applicant UA (Extracted from DD 214)
940410: 	

940203:	BUPERS granted authority to hold discharge in abeyance pending outcome of SPCM.

940511: 	Applicant commences appellate leave.

940902:	*SPCM held.

951006:	Applicant Discharged with a Bad Conduct Discharge

*Service Record did not contain the Special Court Martial Record of Trial.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged in absentia on 19951006 with a bad conduct discharge which was the sentence adjudged by a properly convened special court-martial. That sentence was subsequently approved by both the convening and appellate review authorities (A and B).  After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, the Board found that the Applicant’s issues were insufficient to merit clemency (C).  The Board presumed regularity in the conduct of governmental affairs (D).

In response to the Applicant’s issue, relevant and material facts stated in a court-martial specification are presumed by the NDRB to be established facts.  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.  After a thorough review of the Applicant’s record and issues submitted, the Board determined that clemency was not warranted and that the sentence awarded the Applicant at his court-martial was appropriate. Relief denied.

The Veterans Administration determines eligibility for post-service benefits not the Naval Discharge Review Board.  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.  Additionally, the Board has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities.  Regulations limit the Board’s review to a determination on the propriety and equity of the discharge.

The NDRB advises the applicant that his service record is missing elements of the Special Court Martial Record of Trial. In the Applicant’s case, the Board presumed regularity in the conduct of governmental affairs and that the Applicant’s discharge was regular in all respects.

The Applicant remains eligible for a personal appearance hearing, provided an application is received, at the NDRB, within 15 years from the 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.

Pertinent Regulation/Law (at time of discharge)

A.  Naval Military Personnel Manual, (NAVPERS 15560C), Change 5, effective 
05 Mar 93 until 02 Oct 96, Article 3640420, DISCHARGE OF ENLISTED PERSONNEL ADJUDGED BY SENTENCE OF COURT‑MARTIAL

B.  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, Article 86:(unauthorized absence for more than 30 days and 
92:( Disobeying a lawful order). 

C.   Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part II, Para 205(2), Jurisdictional Limitations Authority for Review of Discharges.

D.  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 IV - INFORMATION FOR THE APPLICANT

If you believe that 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 Directive 1332.28, you may submit a complaint in accordance with Enclosure (5) of that Directive.  You should read Enclosure (5) of the Directive 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 Directive 1332.28 and other Decisional Documents by going online at “http://Boards.law.af.mil”.

The names, and votes of the members of the 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