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

Docket No. ND10-02153

ex-HR, USN

Current Discharge and Applicant’s Request

Application Received: 20100824
Characterization of Service Received: (per DD 214) BAD CONDUCT
Narrative Reason for Discharge: (per DD 214)  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)	19880822 - 19890117  COG	Active:	USN 19890118 - 19921015 HON 

Period of Service Under Review:
Date of Current Enlistment:  19921016	Age at Reenlistment:  23
Period of Enlistment:  3 Years  21 MONTHS Extension
Date of Discharge:  19980225	Highest Rank/Rate:  HM3
Length of Service:  05 Year(s)   04  Month(s)   09 Day(s)
Education Level:  12	AFQT:  48
Evaluation Marks:	Performance:  NFIR	Behavior:  NFIR	OTA:  NFIR

Awards and Decorations (per DD 214):	NDSM, SSDR

NJP:  NONE	SCM:  NONE

SPCM:  1

- 19970116:	Article 86 (Absence without leave - Did absent himself from his unit, without proper authority, on 19960117 and did remain so absent until 19961113 (302 days); absence terminated by civilian apprehension) 
	Sentence as Adjudged: BCD, CONF 90 days (Pre-trial confinement credit: 19961113-19970116, 64 days), FOP for 3 months, RIR E-1

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 13, Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, should read:  “NAVY UNIT COMMENDATION, NAVY “E”, GOOD CONDUCT MEDAL, NATIONAL DEFENSE SERVICE MEDAL, SEA SERVICE DEPLOYMENT RIBBON (w/1 star), SOUTHWEST ASIA SERVICE MEDAL, LETTER OF COMMENDATION”
	Block 29, Dates of Time Lost During This Period, should read “96JAN17-96NOV13, 96NOV13-97JAN16”
	Block 18, Remarks, should read: “Member assigned to appellate leave from 97Jan29-98Feb25”

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:	☐

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 503, Equity.

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

Applicant’s Issues

Decisional issues: The Applicant seeks clemency, contending that his characterization of service at discharge was inequitable due to his wife taking his daughter and leaving him.  The Applicant further contends that his characterization of service at discharge was inequitable as his misconduct was an isolated incident in what was an otherwise outstanding military career.

Decision

Date:  20120103	           DOCUMENTARY REVIEW	Location:  Washington D.C.	Representation:  NONE

By a vote of 5-0 the Characterization shall remain BAD CONDUCT.
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, which 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 as stated in a court-martial are presumed by the NDRB to be established facts.  As such, 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 19 on a 4-year enlistment contract.  The Applicant’s enlistment record reflects his entry into military service with a waiver for having been discharged from the Delayed Entry Program.  The Applicant completed his first enlistment contract honorably and executed an immediate reenlistment for 3 years with a total of 21 months of extensions.  The Applicant was in his second enlistment contract when he was discharged.  The Applicant’s record of service during his current enlistment period (2nd enlistment) reflects no NAVPERS 1070/613 retention-counseling warnings or any administrative punishments (nonjudicial punishment or summary court-martial).  However, the service record does document that the Applicant was subject to trial by Special Court-Martial for violation of the UCMJ as follows: Article 86 (Unauthorized absence - 17 January 1996 to 13 November 1996, 302 days of unauthorized absence, terminated by civilian law enforcement apprehension and return to military custody).  A qualified legal defense counsel represented the Applicant during his trial by Special Court-Martial.  In accordance with a written and signed pre-trial agreement, the Applicant agreed to trial by military judge alone and further elected to plead guilty to the charge as specified.  In consideration, the Convening Authority agreed to limit any adjudged period of confinement to no more than 75 days if the Applicant received a Bad Conduct Discharge and requested voluntary appellate leave.  Given the facts of the case, the trial judge awarded the Applicant a Bad Conduct Discharge, a forfeiture of pay for 3 months, reduction in rank to E-1, and confinement for a period of 90 days.  While confined, the Applicant requested the Naval Clemency and Parole Board remit his sentence to a General discharge, contending his misconduct was an isolated incident in eight years of otherwise good service; the request was denied.  The case was submitted for review without assignment of error to the U.S. Navy–Marine Corps Court of Criminal Appeals; it was reviewed and on 25 November 1997, the findings were affirmed.  Subsequently, the Navy Marine Corps Appellate Leave Activity ordered the Bad Conduct Discharge executed, and it was effected on 25 February 1998.

Besides his DD Form 293, the Applicant provided documentation of his current enrollment in college, verification of work with a medical care company, and copies of his service record in support of his request for consideration by the NDRB.

Decisional Issues: (Clemency/Equity)  RELIEF NOT WARRANTED.  The Applicant seeks clemency, contending that his characterization of service at discharge was inequitable due to his wife taking his daughter and leaving him.  The Applicant further contends that his characterization of service at discharge was inequitable as his misconduct was an isolated incident in what was an otherwise outstanding military career.  The Applicant’s service record documents that he was on his second enlistment contract and had completed 3 years and 3 months of his 4 year and 9 months of obligated service before absenting himself from his unit and being declared a deserter.  The record of trial documents that the Applicant checked out of his present command and then failed to execute permanent change of station orders to his new command.  During the trial, the Applicant testified under oath that he remained absent in the New Orleans area (his previous command area) for a period, before then going to Maryland.  While in Maryland, civilian law enforcement authorities detained the Applicant on unrelated civilian charges.  While detained, the civilian law enforcement authorities determined that the Applicant was a deserter.  As such, the law enforcement officials turned him over to military authority, thereby terminating his unauthorized absence status.  During the Special Court-Martial trial, the Applicant testified under oath to the aforementioned facts and he further testified that he had no desire to remain in the military and sought only to be discharged.  The Applicant further testified that he understood the impact of a Bad Conduct Discharge.  The stated misconduct resulted in the military judge awarding a punitive Bad Conduct Discharge and confinement for 90 days.

The Applicant’s statements on his DD Form 293 indicating that he went UA to look for his wife and daughter and that he fully intended to return to the Navy do not match in any way the testimony he gave at his Special Court-Martial where he stated that he had no desire to remain in the military and sought only to be discharged.  Additionally, nowhere in his court-martial testimony did he state that he went UA to look for his wife and daughter.

The NDRB found that the evidence of record as contained in the verbatim transcript of the record of trial, in contrast to the Applicant’s statement, did not contain sufficient mitigating or extenuating factors to offset the seriousness of the offenses for which the discharge was awarded.  Given the short period of the Applicant’s service, coupled with the repetitive and deliberate nature of the misconduct, the NDRB agreed unanimously that the punishment, as awarded, was equitable and that relief in the form of clemency is not warranted.  Relief denied.

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 NDRB determined thatclemency was not warranted.  Therefore, the awarded characterization of service shall remain BAD CONDUCT DISCHARGE and 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