Title: DEPARTMENT OF THE NAVY
Author: CAP
Last saved by: joyce.meeks
Company: NCPB

Docket No. ND06-01042

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

Docket No. NDXX-00000

ex-HR, USN
ND06-01042

Current Discharge and Applicant’s Request:

Application Received:  				20060804     
Narrative Reason for Separation:			COURT MARTIAL CONVICTION
Character of Service:				BAD CONDUCT
Discharge Authority:				MILPERSMAN 3640420
Last Duty Assignment/Command at Discharge:	2DFSSC FMFLANT CAMLEJ NC

Applicant’s Request:
	Narrative Reason change to:		NONE REQUESTED
	Characterization change to:		GENERAL (UNDER HONORABLE CONDITIONS)
	Review Requested:			DOCUMENTARY REVIEW
Representation:  					None

Decision:

Date of Decision:					20070628
Location of Board:				Washington D.C.
Complete Service Record:				YES
Complete Medical Record:			YES
Complete Discharge Package:			YES

Regarding propriety, the Board found the discharge:	PROPER
Regarding equity, the Board found the discharge:	EQUITABLE
The Board found that clemency was: 		NOT WARRANTED

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 CONVICTION.

Summary of Service:

Prior Service:
Inactive: USNR (DEP)				19880816-19890117 COG
Active:        		               		NONE 
Period of Service Under Review:
Date of Enlistment:  				19890118     
Years Contracted:  				4;  4 MONTH EXTENSION      
Date of Discharge:				19940928
Length of Service:				05 Yrs  08 Mos  11 Days

Does not exclude lost time, if any.

Time Lost During This Period:			134
Days Unauthorized Absence:			98     
Days Confinement:				36
Appellate leave        				02 yrs 06 MOS

Education Level:  				GED
Age at this Enlistment:  				21
AFQT:  						46
Highest Rate/Rank:				HN

Performance Evaluation Averages (number of marks):
Performance:					3.0 (2)
Behavior:					3.0 (2)
OTA:						3.4

Awards and Decorations (as listed on the DD Form 214):
NATIONAL DEFENSE SERVICE MEDAL, SOUTHWEST ASIA SERVICE MEDAL, SEA SERVICE DEPLOYMENT RIBBON, NAVY FMF RIBBON 

Service Record Entries Related to Characterization of Service or Narrative Reason for Separation

19900928:	NJP for violations of UCMJ:
	Article 92: Failure to obey order or regulation, 19900913.
	Article 111: Drunken or reckless driving, 19900913.
	Award:  Forfeiture of $400 for 1 month, reduction to next inferior paygrade (suspended for 3 months).
	No indication of appeal in the record.

19901213:	Retention Warning:  Advised of deficiency (UCMJ Art 92, Failure to obey order or regulation III, Drunken reckless driving), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

19910117:	NJP for violations of UCMJ:
	Article 86: Unauthorized absence, 19901229.
	Article 112: Drunk on duty, 19901229
	Award:  Reduction to the next inferior paygrade (suspended for 6 months), extra duty for 30 days.
	No indication of appeal in the record.

19910228:	NJP for violation of UCMJ, Article 86: Unauthorized absence (30 days).
	
19911223:	Applicant to unauthorized absence at 0730 on 19911213.

19920124:	Report of Declaration of Deserter (NAVPERS 1600-3).  Applicant declared a deserter on 19920124 having been an unauthorized absentee since 0730, 19911223 from 2D MED BN, CG SECOND FSSG 68408.

19920207:	Applicant from unauthorized absence at 0151 on 19920207 (68 days apprehended, DWI, Flowood MS).

19920320:	Special Court-Martial.
	Charge I: Violation of the UCMJ, Article 86.
	Specification: Unauthorized absence from 19911223 to 19920207.
	Charge II: Violation of the UCMJ, Article 123a:
	Specification: Worthless checks (13 valued at $1850.90) made with intent to defraud.		
 	Finding: To Charge I and II, and the specification thereunder, guilty.
	Sentence: Confinement for 75 days, forfeiture of $500.00 per month for 5 months, reduction to E-1, and a Bad Conduct Discharge.
	CA action 19920708:  Sentence approved and except for the Bad Conduct Discharge, will be executed, but that part of the sentence extending to all confinement in excess of 45 days is suspended for a period of 12 months from the date the accused is released from confinement, at which time, unless sooner vacated, the suspended part of the sentence shall be remitted without further action.  The period of pre-trial confinement from 19920213-19920319 is credited toward the period of confinement approved.

19920708:	Convening Authority approved sentence of Special Court Martial.

Elements of Discharge:  [BCD]

Record of Trial Complete:				YES
Date Charges Preferred:				19920313
Date Charges Referred to Special Court-Martial:	19920318
Trial Date:					19920320
Applicant requested BCD:				NO
Date Applicant to Pre-trial Confinement:		19920213
Date Applicant from Pre-trial Confinement:		19920319
Date Applicant to Confinement:			Not available in record
Date Applicant from Confinement:			Not available in record
Date Applicant requested Voluntary Appellate Leave:	19920320
NC&PB Action and Date:				Clemency review waived on 19920320      
USCAAF Action and Date:  			Petition for review granted 19930708       
Date Appellate Review Complete:			19940613     
Date of SSPCMO ordering BCD be executed:	19940928     
Date Applicant Discharged:			19940928     

Additional Information Considered by Board

Type of documentation submitted by the Applicant and considered by the Board
       
       	Document Type					#Pages
       Related to Period of Service Under Review:
	Service/Medical Record:				2     
	Other Period of Service:				0     
       Related to Post-Service Period:
	Community Service:				0     
	Education:					0     
	Employment:					0     
	Health/Medical:					0     
	Character Statements:				0     
	Criminal Records Checks:				0     
	Additional Statements from Applicant:		1     
        Other Documentation	 (Describe Below)		7     

        Total Number of Pages:				10     

       Description of Other Documentation:
USNMC of Military Review, 19921211
NMC Appellate Review Activity, 19921223
SCMCA’s Action and order # GB011-92            

Applicant’s Issues as Summarized by the Board:
The Applicant submitted the following issues.
1.  VA medical
2.  Now more mature, stressed from deployment, drinking problem
3.  Did good things while in Navy.
4.  Post service – employed, family

Issue 1:  This is an Issue which the Board cannot form the basis of relief for the Applicant, that the Board does not have the authority to grant the relief for which the Applicant petitioned.  The Applicant is directed to the Addendum regarding this Issue.  

Decisional Issues:

Issues 2, 3, and 4 (Equity):

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, issues submitted, and post service accomplishments, the Board determined that clemency was not warranted and that the sentence awarded the Applicant at his court-martial was appropriate for the offenses he committed. 

The Applicant contends his disciplinary problems were the result of stress caused by is immaturity, drinking problem and stress from his recent deployment.  The NDRB recognizes that serving in the U.S. Navy is challenging.  Our country is fortunate to have men and women willing to endure the hardships and sacrifices required in order to serve their country.  It must be noted that most members of the Navy serve honorably and therefore earn their honorable discharges.  In fairness to those members of the Navy, commanders and separation authorities are tasked to ensure that undeserving Sailors receive no higher characterization than is due.  The NDRB found that the Applicant's service was equitably characterized. 

The Applicant contends he deserves clemency based on the positive aspects of his service record.  Based upon the record, nothing indicates that the Applicant’s discharge was in any way inconsistent with the standards of discipline in the United States Navy.  The Applicants service was appropriately characterized. 

The NDRB is authorized to consider post-service factors in the recharacterization of a discharge.  However, there is no law or regulation, which provides that an unfavorable discharge, may be upgraded based solely on the passage of time, or good conduct in the civilian life subsequent to leaving the service.  Outstanding post-service conduct, to the extent that 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.  The Applicant provided no documentation of post-service accomplishments.  The Applicant's efforts need to be more encompassing than those provided.  For example, the Applicant could have produced evidence of continuing educational pursuits, a verifiable employment record, documentation of community service, evidence of drug free existence, and certification of non-involvement with civil authorities.  The Board determined that the documentation provided by the Applicant did not mitigate the misconduct that resulted in the characterization of service.  

Pertinent Regulation/Law

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.   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 V, Para 502, Propriety  and  Para 503, Equity.

C.  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, Articles 86 and 123a.

ADDENDUM:  Information for the Applicant

Complaint Procedures:  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 Instruction 1332.28, you may submit a complaint in accordance with Enclosure (5) of that Instruction.  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:  Subsequent to a document review, former members are eligible for a personal appearance hearing, provided the 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.  If a former member has been discharged for more than 15 years, has already been granted a personal appearance hearing or has otherwise exhausted his opportunities before the NDRB, the Applicant may petition the Board for Correction of Naval Records (BCNR), 2 Navy Annex, Washington, DC 20370-5100 for further review.

Service Benefits:  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.

Employment/ Educational Opportunities:  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 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 Board for Correction of Naval Records (BCNR) can make changes to reenlistment codes.  Additionally, the Board 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 subsequently is processed for an administrative involuntary separation for misconduct, the disability evaluation is suspended.  The Physical Evaluation Board case remains in suspense pending the outcome of the non-disability proceedings.  If the action includes either a punitive or administrative discharge for misconduct, 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 “PTSD.”  Only the Board for Correction of Naval Records can grant this type of narrative reason change.  

Automatic Upgrades -  There is no law or regulation, which provides that an unfavorable discharge may be upgraded based solely on the passage of time or good conduct in civilian life subsequent to leaving Naval service.  The NDRB is authorized to consider post-service factors in the recharacterization of a discharge 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.  Examples of documentation that may be provided to the Board include proof of educational pursuits, verifiable employment records, documentation of community service, credible evidence of a substance free lifestyle and certification of non-involvement with civil authorities.  

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 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.  

Board Membership:  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