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

Docket No. ND08-01718

ex-YNSR, USN

Current Discharge and Applicant’s Request

Application Received:  20080813
Characterization of Service Received:  
Narrative Reason for Discharge:  
Authority for Discharge:  MILPERSMAN 

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

Summary of Service

Prior Service:
Inactive: USNR (DEP) 19910921 - 19920802  		Active:  19920803-19980813  HON

Period of Service Under Review:
Date of Enlistment:  19980814	  Period of Enlistment:   Years   27 MONTHS Extension	 Date of Discharge:  20060821
Length of Service:   Years     Months   11 Days	Education Level:  	Age at Enlistment:  	AFQT:  45
Highest Rank/Rate:  YN2	Evaluation Marks: Performance:	4.0 (5)	Behavior:  3.4 (5)	OTA:  3.68
Awards and Decorations (per DD 214):  NUC NMCAM (2) GCM (2) NDSM (2) Rifle  Pistol 

Period of CONF:  20050405-2001215 (7 MOS 11 DAYS) Discharged in absentia

SCM:      CC:      Retention Warnings:  

NJP:  
- 20000228:  Article 121 (Wrongful appropriation) 
                     Awarded:     Suspended:  

SPCM:  
- 20040505:  Article 81 (Conspire with another service member to commit larceny and fraud of a value in excess of 
                                       $40,000)
	Article 132 (Frauds against the United States), 2 specifications 
	Sentence:  CONF FOR 1 YEAR BCD

Types of Documents Submitted/reviewed

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

		- Record of Trial dated 5 May 2004			

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.  The Naval Military Personnel Manual, (NAVPERS 15560C), Change 12, effective 19 September 2005 until Present, Article 5815-010, EXECUTING A DISHONORABLE OR BAD CONDUCT DISCHARGE.

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 121 (Larceny).

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

Applicant’s Issues

1.  Applicant feels his misconduct was not intentional.
2.  Lost binder of personal correspondence.

Decision

Date:  20081204		Location:  Washington D.C.	Representation:  

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

Discussion

:  ()  . The Applicant is asking for his discharge to be upgraded from a “Bad Conduct Discharge” (BCD) to a “General (Under Honorable Conditions)” because he feels his misconduct was not intentional.  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 1 NJP and a SPCM for violations of the Uniform Code of Military Justice (UCMJ):  Article 81 (Conspire with another service member to commit larceny and fraud in excess of $40,000); Article 121 (Wrongful appropriation); and Article 132 (Frauds against the United States), 2 specifications.  These are serious violations and as a result of the Article 81 and Article 132 violations the Applicant was awarded a BCD by a SPCM. 

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 Board is restricted to upgrades based on clemency.  Clemency is an act of leniency that reduces the severity of the punishment imposed.  
The Record of Trial shows the Applicant was in a position within his command to impact pay and allowance.  It shows he was paid $750.00 by fellow sailors to falsify official documents so these sailors could illegally obtain financial entitlements related to the Basic Housing Allowance they did not rate.  The Applicant accepted the money knowing it was for the aforementioned services and he created the desired false documents.  There was nothing unintentional about his actions, he deliberately violated the special trust and confidence placed in him by his commander and the Navy to help safe guard and properly use government entitlements and funds.  

The Applicant’s case was considered under the pertinent standards of equity to determine if any factors in this particular case merited clemency.  The Board found the evidence of record did not contain sufficient mitigating or extenuating factors to offset the seriousness of the offense for which he received his SPCM.  The Board determined the awarded discharge characterization was appropriate and an upgrade based on the fact the Applicant feels his actions were unintentional would be inappropriate.  

Issue 2:  The Applicant is asking for help in locating a binder used by his defense attorney which documented the Applicant’s Naval service.  The Board has no means of assisting in this search.  It is recommended the Applicant contact his last command or his defense attorney for information on disposition of his binder.

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 or for any basis wherein an Other Than Honorable Discharge is authorized, 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 – Non-judicial 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