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

Docket No. ND07-00183

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

ex-FR, USN
ND07-00183

Current Discharge and Applicant’s Request

Application Received:  20061003 	Characterization Received:  
Narrative Reason:  CONVICTION BY SPECIAL COURT-MARTIAL Authority:  MILPERSMAN 3640420

Applicant’s Request:	Characterization change to:    
			Narrative Reason change to: 
Applicant’s Issues:	1. Clemency
			
Decision

By a vote of  the Characterization shall  .	
By a vote of  the Narrative Reason shall  CONVICTION BY SPECIAL COURT-MARTIAL.

Date:  20070913    Location:  Washington D.C.  The Board found that 

Discussion

Issue 1: (Equity).  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.  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.  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 offense for which the discharge was awarded.  In addition, the reason for discharge, convicted by special court-martial, is most appropriate.  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.

Summary of Service

Prior Service:
Inactive: USNR (DEP)	19870305 - 19870810  		Active:   
Period of Service Under Review:
Date of Enlistment: 19870811	Years Contracted:  		Date of Discharge:  19920723
Length of Service:  04  Yrs  11  Mths  13  Dys	Lost Time:  Days UA:  178  Days Confined:  83
Education Level:  	Age at Enlistment:  	AFQT:  35	Highest Rank/Rate:  FN
Evaluation marks (# of occasions):	Performance:  N/A	Behavior:  N/A	 OTA:  N/A
Awards and Decorations (per DD 214):  NONE

Medical/Service Record Entries Related to Characterization of Service or Basis for Discharge

19881130:	Retention Warning for failure to pay just debts or repeatedly incurring debts beyond your ability to pay is evidence of irresponsibility and may jeopardize your security clearance status, advancement status, duty assignment, qualification for reenlistment or extension of enlistment, and in aggravated circumstances may become grounds for disciplinary action and administrative discharge.

19890519:	CO's NJP -- Viol UCMJ Art. 92 (3 specs) - Failure to obey a lawful order, Art. 80 - Attempted wrongful disposition of military property.
	Awarded - RIR (E-1); Restr for (20 days); Extra duties (20 days).  Punishment suspended for 4 months.

19890526:	Retention Warning for CO’s NJP on 19890519 for three specifications of violation of UCMJ Article 92: Failure to obey order or regulation (two of these were alcohol related incidents) and one specification of UCMJ Article 80: Attempted wrongful disposition of military property.

19900526:	Applicant to unauthorized absence 0645.

19900529:	Applicant from unauthorized absence 0900 (3 days/surrendered).

19900727:	SPCM -- Viol UCMJ Art. 86 - Unauthorized absence from 19900503 to 19900525 (21 days/apprehended), Art. 87 - Missed movement on 19900909, Art. 112a - Wrongfully use marijuana between 19900515 and 19900525.
	Awarded -  FOP ($400.00) for (3 months); RIR (E-1); Confinement (90 days).

19900727:	Applicant to confinement.

19901009:	Applicant from confinement (75 days).

19901011:	Applicant UA

19901111:	Applicant declared a deserter.

19910419:	Applicant apprehended (154 days UA)

19910620:	Applicant to confinement.

19910627:	Applicant from confinement.

19910627:	Applicant signed appellate rights statement.

19910923:	Applicant requested appellate leave.

19911102:	Applicant to leave without pay.

Discharge Process

Charge(s) and Specification(s):  Article 86 (3 specs), (1) unauthorized absence from 19901011 until apprehended on 19910315 (154 days), (2) Fail to go at the prescribed time to appointed place of duty on 0715, 19910416, (3) Fail to go at the time prescribed to appointed place of duty 2330, 19910424.
Preferred:  19910503	Court-martial:  19910627	Findings:  Guilty of Article(s) 86 (2 specs)
Sentence:  BCD; Conf 125 days; FOP  $250.00	 	CA action:  19910905
NC&PB Action:  NONE
Appellate Review Complete:  19920709	BCD ordered executed:  19920712 SSPCMCO No. 92-767
Applicant Discharged:  19920723

Types of Documents Submitted by Applicant and Considered By Board

Related to Military Service:	Service and/or Medical Record:  		Other Records:  

Related to Post-Service Period:  	
	Employment:  			Finances:  			Education: 		
	Health/Medical Records:  		Substance Abuse:			Criminal Records:  	
	Family/Personal Status: 		Community Service:  		References:  		
	
Additional Statements From Applicant:  	From Representative:    
Other Documentation (Describe)       

Pertinent Regulation/Law

A.  Naval Military Personnel Manual, (NAVPERS 15560C), effective 15 August 1991 until 4 March 1993, 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, Article 86.

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 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:  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