Title: DEPARTMENT OF THE NAVY
Author: CAP
Last saved by: janet.goode
Company: NCPB

Docket No. ND08-01223

ex-AOAR, USN

Current Discharge and Applicant’s Request

Application Received:  20080516
Characterization of Service Received:  
Narrative Reason for Discharge:  
Authority for Discharge:  MILPERSMAN 3640420

Applicant’s Request:  Characterization change to:  
		       Narrative Reason change to:  

Summary of Service

Prior Service:
Inactive:  USNR (DEP)  19920218 - 19920415  		Active:   

Period of Service Under Review:
Date of Enlistment:  19920416	  Period of Enlistment:   Years   Extension	Date of Discharge:  19970930
Length of Service:   Years     Months   16 Days   Education Level:  	  Age at Enlistment:  	    AFQT:  54
Highest Rank/Rate:  AOAN	 Evaluation Marks:  Performance: NFIR	Behavior: NFIR	 OTA:  NFIR
Awards and Decorations (per DD 214):  NDSM

Period of Lost Time:  19960606-19970930 (480 DAYS) per DD 214.  Discharged in absentia.

NJPs:  
          
SCMs:  

SPCM: 	
19960517:  Article 86 (Unauthorized absence), 2 Specifications:
	         - Specification 1:  Unauthorized absence from 19940830-19950405 (215 DAYS)
	         - Specification 2:  Unauthorized absence from 19950503-19960405 (334 DAYS) 
                   Sentence: CONF FOR 45 DAYS FOP RIR TO E-1 BCD
CC:  

Retention Warnings:  

Types of Documents Submitted/reviewed

Related to Military Service:	
                                         DD 214:  	 Service/Medical Record:  		  Other Records:  

				- Record of Trial dated 17 May 1996

Related to Post-Service Period:	
	Employment:			Finances:			Education/Training:	
	Health/Medical Records:		Substance Abuse:			Criminal Records:	
	Family/Personal Status:		Community Service:		References:		
              Additional Statements:
                             From Applicant:  	From Representation:         	From Congress member:    

              Other Documentation (Describe):  

Pertinent Regulation/Law

A.  Naval Military Personnel Manual, (NAVPERS 15560C), Change 14, effective 3 October 96 until 
14 December 1998, 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.

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

Applicant’s Issues

1.  Discharge was racially motivated. 
2.  Too young to know how to address this wrong.

Decision

Date:  20081002      	Location:  Washington D.C.	Representation:  

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

Discussion

:  (CLEMENCY)  RELIEF NOT WARRANTED.  The Applicant claims denial of his request for early release and his ultimate discharge from the US Navy were racially motivated; he states he did not report this inequity earlier because of his youth and immaturity.  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.  The Applicant’s record of service was marred by violations of the Uniform Code of Military Justice (UCMJ):  Article 86 (UA).  
The Applicant went UA for: the first time on 30 August 1994, he was absent for 215 days.  He returned to military control for 28 days and went UA again for 334 days.  The Applicant was subject to a Special Court Martial for his actions, where he received a Bad Conduct Discharge, forfeiture of pay of $550.00 per month for two months, confinement for 45 days and reduction in rank to E-1.  

The Applicant states his ship, the USS Saratoga (CV-60) was being decommissioned and he asked to be released from active duty, but his request was denied by a Master Chief due to racial issues.  When the Applicant tried to protest, he was informed by other “khakis” that it would not be worth it or beneficial to his career in the Navy to raise the issue.  The USS Saratoga was decommissioned on 20 August 1994.  At that time the Applicant had served 2 years, 4 months and 4 days of his initial 4 year, 4 month enlistment:  He still had 1 year, 11 months and 26 days remaining.  He was almost 23 years old at the time of this incident which is older than most of his peers.and he had presumably more life experiences.  After almost 2 ½ years of service, he knew what was expected from a seaman in the US Navy.  He claims he did not complain about the racial inequity, because he feared for his career.  In recruit training all hands are given a class on the chain of command, the individual’s right to request mast to the commanding officer and how to do it.  The Applicant did not take advantage of the opportunities available to him to address the perceived wrong.  Instead, he choose to go UA for extended periods twice which effectively eliminated his potential for future service.  The Applicant produces no statements from witnesses to support his claim that racial discrimination was part of the decision making process.

In his Special Court Martial record of trial, the Applicant stated he went UA due to marital stress as a result of his previous 6 month deployment aboard the USS Saratoga.  After he was ordered to report to the USS America, the Applicant states he went UA because the USS America was scheduled go underway for another six months.  His wife did not support extended deployments and he did not want to be separated from her again.  The Applicant plead guilty to both UA specifications.  No where is his being denied an early out presented during his Special Court martial proceedings.  While he may have thought he was young and immature he was older than most of his peers and he provides no justification or medical evidence to prove he was not responsible for his actions.  After reviewing the documentation, the Board determined that an upgrade of the characterization of his discharge based on clemency would be unwarranted and inappropriate. 

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

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 or is referred to a court martial 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 other medical related reasons.  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 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 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

Key:	NFIR - Not Found In Record 	UA – Unauthorized absence	NJP – Nonjudicial punishment	SCM – Summary court-martial
	SPCM – Special court-martial	FOP – Forfeiture of pay	RIR – Reduction in rank	EPD – Extra Duties
	CONF – Confinement		B&W – Confinement on bread and water			CC - Civilian conviction

Key:	NFIR - Not Found In Record 	UA – Unauthorized absence	NJP – Nonjudicial punishment	SCM – Summary court-martial	
	SPCM – Special court-martial	FOP – Forfeiture of pay	RIR – Reduction in rank	EPD – Extra Duties 
	CONF – Confinement		B&W – Confinement on bread and water