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

Docket No. ND09-00351

ex-SR, USN

Current Discharge and Applicant’s Request

Application Received:  20081201
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)	20030222 - 20030929  	Active:	

Period of Service Under Review:
Date of Enlistment:  20030930	Age at Enlistment:  
Period of Enlistment:   Years   Extension
Date of Discharge:  20070124	Highest Rank/Rate:  SN
Length of Service:   Year(s)     Month(s)   15 Day(s)
Education Level:  	AFQT:  73
Evaluation Marks:	Performance:  NFIR 	Behavior:  NFIR	OTA:  NFIR

Awards and Decorations (per DD 214):       

Periods of CONF:  20050825 – 20051103 (69 days)

NJP:    SCM:      CC:       Retention Warning Counseling:  

SPCM:  

- 20050825:  Article 81 (Conspiracy)
                     Article 107 (False official statement)
                     Article 109 (Destruction of property other than US Military property)
                     Article 121 (Larceny and wrongful appropriation)
                   Sentence:  BCD CONF (120 days) FOP RIR

Administrative Corrections to the Applicant’s DD 214

The NDRB did note administrative error(s) on the original DD Form 214:

	 Decorations, Medals,  Badges, Citations and Campaign Ribbons Awarded or Authorized, should read “NATIONAL DEFENSE SERVICE MEDAL, GLOBAL WAR ON TERRORISM SERVICE MEDAL, GLOBAL WAR ON TERRORISM EXPEDITIONARY MEDAL, NAVY SEA SERVICE DEPLOYMENT RIBBON, ARMED SERVICES EXPEDITIONARY MEDAL, NAVY UNIT COMMENDATION, NAVY “E” RIBBON. ”
	
The NDRB will recommend to the Commander, Navy Personnel Command, that the DD 214 be corrected as appropriate.

Types of Documents Submitted/reviewed

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

	- Record of Trial from 25 July & 25 August 2005

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:  

Pertinent Regulation/Law

A.  The Naval Military Personnel Manual, (NAVPERS 15560C), Change 8, effective 9 September 2004 until 
18 September 2005, 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 IV, Para 403m(7)(a), Presumption Concerning Court-Martial Specifications  

C.  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.

D.  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 violations of the UCM:  Article 81 (Conspiracy); Article 107 (False official statement); Article 109 (Destruction of property other than US Military property) and Article 121 (Larceny and wrongful appropriation).

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

Applicant’s Issues

1.  Record of service/Isolated incident.
2.  Youth and immaturity.
3.  Ineffective counsel.  

Decision

Date:  20090305		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 contends his discharge should be upgraded based on his record of service which was good apart from a single period of misconduct.  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 Applicant’s record of service was marred by a SPCM for violations of the Uniform Code of Military Justice (UCMJ):  Article 81 (Conspiracy); Article 107 (False official statement); Article 109 (Destruction of property other than US Military property) and Article 121 (Larceny and wrongful appropriation).  These violations are considered serious offenses and can be the basis for a “Bad Conduct Discharge” if awarded by a SPCM:  The Applicant’s was made subject of a SPCM and awarded a “Bad Conduct Discharge”.  The Board determined the awarded discharge characterization was appropriate and clemency would be inappropriate.

:  ()  .  The Applicant contends his problems in the Navy can be attributed to mistakes he made when he was young.  While he may feel his youth was the underlying cause of his misconduct, the record of evidence does not demonstrate the Applicant was not responsible for his misconduct or should not be held accountable for his actions due to youth or immaturity.  The Board determined clemency would be inappropriate.

:  ()  .  The Applicant contends he received ineffective counsel at his SPCM.  Per the Record of Trial, the Applicant was afforded the right to civilian counsel at his own expense, defense counsel of his own choosing or to accept the assigned Defense Counsel.  The Applicant chose to remain with his assigned Defense Counsel.  There is no evidence in the record, nor was any provided by the Applicant, to demonstrate the defense counsel was ineffective.  The Applicant may have been unsatisfied with the outcome of the SPCM and the awarded punitive discharge but this dissatisfaction is not the result of ineffective counsel; it is the result of misconduct on the Applicant’s part and the punishment he received as a result of this misconduct.  The Applicant was charged with, and subsequently found guilty of, serious violations warranting a “Bad Conduct Discharge”.  Therefore, the Board determined clemency due to ineffective counsel would be inappropriate.  

The NDRB is authorized to consider post-service factors in consideration if a case warrants clemency.  Outstanding post-service conduct, to the extent such matters provide a basis for clemency, are considered during Board reviews.  Supporting documentation to help support post service clemency includes, but is not limited to: a verifiable continuous employment record; documentation of community or church service; certification of non-involvement with civil authorities; evidence of financial stability or letters of good standing from banks, credit card company’s, or other financial institutions; character witness statements; attending or completion of higher education (official transcripts) and documentation of a drug free lifestyle.  The Applicant is advised that completion of these items alone does not guarantee clemency will be granted, as each discharge is reviewed by the Board on a case by case basis to determine if post service conduct justifies clemency.  The Applicant’s case was considered under the pertinent standards of equity to determine if any factors in this particular case merited clemency.  

Besides the Applicants statement on the DD Form 293, he failed to provide any additional documentation and evidence on his behalf.  To warrant clemency, the Applicant’s post service efforts need to be more encompassing.  The Applicant could have produced additional evidence as stated above to help substantiate his case as statements alone from the Applicant cannot be used as 
the sole justification for the Board to reach a clemency decision.  The Board determined the characterization of service received, “Bad Conduct Discharge”, was an appropriate characterization considering the length of service and the UCMJ violations involved, and based on the lack of post service documentation provided clemency would be 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 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	CC - Civilian conviction	CCU - Correctional Custody Unit	B&W – Confinement on bread and water

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