Title: DEPARTMENT OF THE NAVY
Author: CAP
Last saved by: jennifer.miles
Company: NCPB

Docket No. ND10-00482

ex-HTFR, USN

Current Discharge and Applicant’s Request

Application Received: 20091130
Characterization of Service Received: (per DD 214) BAD CONDUCT
Narrative Reason for Discharge: (corrected) COURT-MARTIAL
Authority for Discharge: (per DD 214) MILPERSMAN 3640420 [COURT MARTIAL]

Applicant’s Request:	Characterization change to:	GENERAL (UNDER HONORABLE CONDITIONS)
	Narrative Reason change to:	NONE REQUESTED

Summary of Service

Prior Service:
Inactive:	USNR (DEP)	19900410 - 19900808  COG	Active:	USN	19900809 - 19940905  HON

Period of Service Under Review:
Date of Current Enlistment:  19940906	Age at Current Re-enlistment:  23
Period of Enlistment:  4 Years  NO Extension
Date of Discharge:  19980224	Highest Rank/Rate:  HT3
Length of Service:  03 Year(s)   05  Month(s)   19 Day(s)
Education Level:  12	AFQT:  32
Evaluation Marks:	Performance:  4.0 (2)	Behavior:  4.0 (2)	OTA:  4.00

Awards and Decorations (per DD 214): NDSM, SSDR (3), NUC, SWASM WITH BRONZE STAR, KLM, MUC, LoC, GCM

NJP:  1

- 19960312:	Article 86 (UA), 3 specifications
	Specification 1: 0730-0945, 19960220
	Specification 2: Failure to go to duty muster 0700, 19960301
	Specification 3: Failure to go to DC1’s office 0830, 19960304
	Awarded: RESTR EPD FOP  Suspended:  RESTR FOP

SCM:  NONE

SPCM:  1

- 19970417:	Article 86 (Unauthorized Absence 19960401 - 19970219, 324 days)
	Article 86 (Failure to go to appointed place of duty 0700, 19960325)
	Sentence: CONF75 DAYS (19970219-19970422, 65 days) RIR E-1 BCD

CC:  NONE

Retention Warning Counseling:  NONE

Administrative Corrections to the Applicant’s DD 214

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

	Block 28, Narrative Reason for Separation, should read: “COURT-MARTIAL”

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: (Trial Record-CM)	☒

Related to Post-Service Period:
	Employment:	☐	Finances:	☐	Education/Training:	☒
	Health/Medical Records:	☐	Rehabilitation/Treatment:	☐	Criminal Records:	☐
	Personal Documentation:	☐	Community Service:	☐	References:	☐
	Department of VA letter:	☐	Other Documentation:	☐
		Additional Statements:
	From Applicant:	☒	From/To Representation:	☐	From/To Congress member:	☐

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 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.

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

Applicant’s Issues

1.	Decisional issues: (Clemency) The Applicant seeks clemency in the form of an upgrade in the characterization of his service at discharge to General (Under Honorable Conditions) due to extenuating and mitigating facts of his case.  The Applicant does not seek a change in the narrative reason for his discharge.  

Decision

Date:  20110217              DOCUMENTARY REVIEW	Location:  Washington D.C.	Representation:  NONE

By a vote of 5-0 the Characterization shall change to GENERAL (UNDER HONORABLE CONDITIONS).
By a vote of 5-0 the Narrative Reason shall remain COURT-MARTIAL.

Discussion

In reviewing discharges, the NDRB 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.  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.  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.  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 service record indicates he entered military service at age 18 on a 4-year enlistment contract for the Seafarer Seaman Apprentice Program, achieving the rating of Hull Technician (HT).  After completing 4 years and 1 month of honorable service, the Applicant executed an immediate reenlistment for 4 years.  The highest rank achieved during his enlistments was HT3.  The Applicant is a Gulf War Veteran, having served honorably in the Persian Gulf both during and after Operation Desert Storm.   

The Applicant’s period of service under review reflects no NAVPERS 1070/613 retention-counseling warnings and one non-judicial punishment for violation of the Uniform Code of Military Justice (UCMJ): Article 86 (2 specifications of failure to go to appointed place of duty at prescribed time and 1 specification of failure to be at appointed place of duty).  Additionally, the Applicant’s record of service contains a trial by Special Court-Martial for violation of Article 86  (Unauthorized Absence - Failure to go to appointed place of duty) and Article 85 (Desertion – Absenting himself from his unit without authorization, in excess of 30 days, without intent to return, terminated by apprehension (19960401 – 19970219) (324 days).

The Applicant was represented by qualified defense counsel during his trial by Special Court-Martial.  The Applicant exercised his right to request a trial by military judge alone and further elected to plead guilty to the charge of violation of Article 86 of the UCMJ.  In regards to the charge of violating Article 85 of the UCMJ, the Applicant elected a trial by judge alone.  In trial by judge alone, the Applicant was found not guilty of violating Article 85 as specified, but was found guilty of the charge with the excepting of the words “with intent to remain away there from permanently” and further excepting the words “in desertion.”  With the exception of the desertion, the Applicant was found guilty of the lesser included charge of an Unauthorized Absence in excess of 30 days.  There was no pre-trial agreement in place for consideration by the Military Judge.  Given the facts of the case, the trial judged awarded the Applicant a Bad Conduct Discharge, confinement for 75 days, forfeiture of pay, and reduction in rank to E-1.  The Applicant served the remaining confinement on his sentence after receiving credit for the 57 days of pre-trial confinement that he had already served.  The case was reviewed and affirmed by the U.S. Navy–Marine Corps Court of Criminal Appeals.  

Besides his DD Form 293, the Applicant provided a personal statement and copies of training certificates and a copy of the Transportation Security Administration determination of no security threat with a hazardous materials transport authorization for consideration by the NDRB.   

Issue 1: (Clemency/Equity) RELIEF WARRANTED.  The Applicant seeks clemency in the form of an upgrade in the characterization of his service at discharge to General (Under Honorable Conditions) due to extenuating and mitigating facts of his case.  The Applicant seeks no change to his narrative reason for separation.    

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 along with the Applicant’s additional documentation to contain sufficient mitigating or extenuating factors to offset the seriousness of the offenses for which the discharge was awarded.  Given the unique circumstances of the case, coupled with the reason for and the nature of the misconduct, the NDRB unanimously agreed that the punishment was inequitably harsh and that relief in the form of clemency was warranted.  Therefore, after reviewing the Applicant’s issue, the supporting documentation, and the evidence of record contained in the verbatim transcript of the trial, the NDRB discerned an inequity in the characterization of service and determined that clemency, as requested, was warranted.   

Summary:  After a thorough review of the available evidence, to include the Applicant’s summary of service, service record entries, the verbatim transcript record of trial by Special Court-Martial, and the discharge process, the Board found thatclemency was warranted.  Therefore, the awarded characterization of service shall change to GENERAL (UNDER HONORABLE CONDITIONS), but the narrative reason for separation shall remain COURT-MARTIAL.

The Applicant remains eligible for a personal appearance hearing for a period of fifteen years from the date of his discharge.  The Applicant is directed to the Addendum, specifically the paragraphs titled Additional Reviews and Post-Service Conduct.

ADDENDUM:  Information for the Applicant

Complaint Procedures:  If you believe 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:  After a document review has been conducted, former members are eligible for a personal appearance hearing, provided the application is received at the NDRB within 15 years of the Applicant’s 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.  There are veterans organizations such as the American Legion and the Disabled American Veterans that are willing to provide guidance to former service members in their efforts to obtain a discharge upgrade.  If a former member has been discharged for more than 15 years, has already been granted a personal appearance hearing or has otherwise exhausted their 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 U.S. Department of Veterans Affairs (VA) determines eligibility for post-service benefits, not the NDRB.  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 NDRB has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities.  Regulations limit the NDRB’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 BCNR can make changes to reenlistment codes.  Additionally, the NDRB 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 is processed subsequently for an administrative involuntary separation or is referred to a court martial for misconduct, the disability evaluation is suspended 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 BCNR can grant this type of narrative reason change.

Automatic Upgrades - There is no law or regulation that provides for an unfavorable discharge to be upgraded based solely on the passage of time or good conduct subsequent to leaving naval service.

Post-Service Conduct:  The NDRB is authorized to consider post-service factors in the recharacterization of a discharge.  Outstanding post-service conduct, 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, is considered during Board reviews.  Documentation to support a post-service conduct upgrade includes, but is not limited to: a verifiable continuous employment record; marriage and children’s birth certificates (if applicable); character witness statements; 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 companies, or other financial institutions; attendance at 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 the upgrade of an unfavorable discharge, as each discharge is reviewed by the Board on a case-by-case basis to determine if post-service accomplishments help demonstrate  in-service misconduct was an aberration and not indicative of the member’s overall character.

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 NDRB 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	CC - Civilian conviction	CCU - Correctional Custody Unit	BW - 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