ex-ETSN, USN
ND07-00871

Current Discharge and Applicant’s Request

Application Received:  20070612 	  Characterization Received:  
Narrative Reason:  IN LIEU OF TRIAL BY COURT MARTIAL 		Authority:  MILPERSMAN 3630650

Applicant’s Request:	Characterization change to:  
			Narrative Reason change to: 
Applicant’s Issues:	1.  Post-service conduct

Decision

By a vote of  the Characterization shall  .
By a vote of  the Narrative Reason shall  IN LIEU OF TRIAL BY COURT MARTIAL.

Date:  20080313			Location:  Washington D.C	 Representation:  

Discussion

Issue 1 ().  An honorable characterization of service is warranted when the quality of a member’s service generally meets the standard of acceptable conduct and performance for naval personnel, or is otherwise so meritorious that any other characterization of service would be clearly inappropriate.  A discharge under other than honorable conditions is warranted when a member engages in conduct involving one or more acts or omissions that constitute a significant departure from the conduct expected of members of the naval service.  Although the record does not contain a copy of the Applicant’s request for discharge in lieu of trial by court-martial, it was referenced in the Separation Authority’s action and the Board found sufficient evidence in the record to conclude that the reason for discharge was factually based.  The Board presumed that the request was in accordance with applicable regulations and determined that the Applicant’s discharge was warranted by his misconduct.  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 the service.  The NDRB is authorized to consider outstanding post-service factors in the recharacterization of a discharge 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.  Verifiable proof of post-service accomplishments must be provided in order for the Applicant to claim post-service conduct and behavior as a reason to upgrade a less than honorable discharge.  After a complete review of the entire record, including the evidence submitted by the Applicant, the Board determined that the discharge was appropriate and that the Applicant has not provided sufficient evidence for the Board to consider an upgrade at this time.

In reviewing discharges, the Board 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.  After a thorough review of the available evidence, to include the Applicant’s Summary of Service, Medical and Service Record Entries, Discharge Process and evidence submitted by the Applicant, the Board found that 

Summary of Service

Prior Service:
Inactive: USNR (DEP)	19851008 - 19860715  		Active:   	19860716 - 19880825	HON
Period of Service Under Review:
Date of Enlistment: 19880826			Years Contracted:  			Date of Discharge:  19931105
Length of Service:  03  Yrs  02  Mths  10  Dys		Lost Time:  Days UA:    Days Confined:  *
Education Level:  		Age at Enlistment:  		AFQT:  82	Highest Rank/Rate:  ET2
Evaluation marks (# of occasions):	Performance:  3.3(6)	Behavior:  3.1(6)	 	OTA:  3.57  (4.0 scale)
Awards and Decorations (per DD 214):  MUC, BATTLE "E", NDSM, GCM, LoC
*Applicant was confined pursuant to GCM sentence; however, sentence was set aside on appeal.

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

19920708:	Chief of Naval Personnel advised Applicant that his performance was below acceptable standards and that he was placed on Petty Officer Quality Control as of January 1992.

19920722:	Applicant acknowledged receipt and understanding of Chief of Naval Personnel letter of substandard service.

19930204:	General Court-Martial for violation of Article 123a (37 specifications).  Per pretrial agreement, Applicant pled guilty to 16 specifications, 21 specifications withdrawn.  
	Sentence:  BCD, RIR E-1, Confinement for 6 months.

19930305:	Convening Authority approved sentence.

19930615:	Navy-Marine Corps Court of Military Review set aside findings of guilt and sentence because military judge failed to conduct sufficient inquiry into factual basis for guilty plea.

19930616:	The Judge Advocate General of the Navy returned the record of trial to Commanding Officer, Naval Station, Norfolk, VA and advised that a rehearing may be ordered.

19930930:	Applicant submitted request for administrative separation in lieu of trial by court-martial.
	[Extracted from Commander, Naval Base, Norfolk letter dated 19931014.]

19931014:	Commander, Naval Base, Norfolk, approved Applicant’s request for administrative discharge in lieu of trial by court-martial with characterization of service as under other than honorable conditions.

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)  DD Form 149

Pertinent Regulation/Law

A.  Naval Military Personnel Manual, (NAVPERS 15560C), Change 5, effective 5 March 1993 until 21 July 1994, Article 3630650, PROCEDURES FOR PROCESSING ENLISTED PERSONNEL FOR SEPARATION IN LIEU OF TRIAL BY 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 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 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