ex-SKSR, USN

Current Discharge and Applicant’s Request

Application Received: 20150120
Characterization of Service Received:   
Narrative Reason for Discharge:   
Reenlistment Code:  
Authority for Discharge:   MILPERSMAN 

Applicant’s Request:	Characterization change to:	
	Narrative Reason change to:	
	RE-Entry Code change to:  REQUESTED, BUT NOT SPECIFIED
	
Summary of Service

Prior Service:
Inactive:	USNR (DEP)	19870515 - 19870720  	Active:	19870721-19910210 HON
				19919211-19941121 HON
				19941122-19990309 HON
Period of Service Under Review:

Date of Current Enlistment:  19990310	Age at Enlistment:  
Period of Enlistment:   Years   Extension
Date of Discharge:  20071030	Highest Rank/Rate:  SK1
Length of Service:   Year(s)     Month(s)   21 Day(s)
Education Level:  	AFQT:  31
Evaluation Marks:	Performance:  4 (1)	Behavior:  4 (1)	OTA:  3.86

Awards and Decorations (per DD 214):	Rifle  Pistol    JMUA   (2)  (2)  (3)NRSSR  (SA) (K)  

NJP:   SCM:   

SPCM:  

- 20000621:	Article  20000115-20000420, 95 days
	Article 
	Article 
	Article 132 (Frauds against the United States, More than $500.00)
	Article  breaking restrictions
	Sentence: CONF 170 days (20000621-2000908, 79 days)   BCD
	CA: Sentence approved, except for that part extending to the BCD.

CIVIL ARREST:    CC:  

Retention Warning Counseling:  

Administrative Corrections to the Applicant’s DD 214

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

  “13 01 18”
	 Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, should read:  “NAVY-MARINE CORPS ACHIEVEMENT MEDAL, JOINT MERITORIOUS UNIT AWARD, MERITORIOUS COMMENDATION, NAVY “E” RIBBON, GOOD CONDUCT MEDAL WITH BRONZE SERVICE STAR, NATIONAL DEFENSE MEDAL, ARMED FORCES EXPEDITIONARY MEDAL WITH TWO BRONZE STARS, SOUTHWEST ASIA MEDAL, SEA SERVICE DEPLOYMENT RIBBON WITH THREE BRONZE SERVICE STARS, NAVAL RESERVE SEA SERVICE RIBBON, NAVY-MARINE CORPS OVERSEAS SERVICE RIBBON, KUWAIT LIBERATION MEDAL FOR THE KINGDOM OF SAUDI ARABIA, KUWAIT LIBERATION MEDAL FOR KUWAIT, MARKSMAN RIFLEMAN RIBBON, SHARPSHOOTER PISTOL RIBBON, ENLISTED SURFACE WARFARE SPECIALIST PIN, AND ENLISTED AVIATION WARFARE SPECIALIST PIN”

  “CONTINUOUS HONORABLE ACTIVE SERVICE FROM 19870721 UNTIL 19990309”

  “00JAN15-00APR20, 00JUN21-00SEP08”

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:	

Types of Witnesses Who Testified

	Expert:		Character:	

Pertinent Regulation/Law

A.  The Naval Military Personnel Manual, (NAVPERS 15560C), Change 21, effective 19 December 2007 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 IV, Para 403m(7)(a), Presumption Concerning Court-Martial Specifications.

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

Applicant’s Issues

1.  The Applicant contends his Re-Entry Code was unjust and should be upgraded so he can be entitled to VA Benefits. 
2.  The Applicant contends an upgrade would make him eligible to receive VA Benefits.
3.  The Applicant contends he did not receive copies of the record of trial and that he did not get a response on his previous request for an upgrade.
4.  The Applicant contends his discharge was unjust because he was busted from E6 to E1.
5.  The Applicant contends post service conduct merits consideration for an upgrade.

Decision

Date:  20150709		Location:  Washington D.C.	Representation:  

By a vote of  the Characterization shall  .
By a vote of  the Narrative Reason shall  .
By a vote of  the Reenlistment Code shall  .

Discussion

The NDRB, under its responsibility to examine the propriety and equity of an Applicant’s discharge, is authorized to change the character of service and the reason for discharge if such change is warranted.  In reviewing discharges, the Board presumes regularity in the conduct of governmental 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 record of service included  Special Court-Martial for  of the Uniform Code of Military Justice (UCMJ): Article 86 (Absence without leave), Article 107 (False official statements), Article 121 (Larceny), Article 132 (Frauds against the United States, More than $500.00), and Article 134 (General article, breaking restrictions).  The Applicant’s service record documents a punitive conviction and punishment, as adjudged by a Special Court-Martial, on 21 June 2000.  A qualified legal defense counsel represented the Applicant throughout the trial by Special Court-Martial process.  Given the facts of the case, the Special Court-Martial awarded the Applicant a Bad Conduct Discharge, reduction to (E-1), forfeiture of pay, and confinement for 170 Days.  The Convening Authority approved the sentence as adjudged.  The case was submitted for review to the U.S. Navy-Marine Corps Court of Criminal Appeals with assignment of one error; right to speedy trial was materially prejudiced by a delay of 2486 days between trial and docketing with the court.  The case was reviewed, and that no error was committed that was materially prejudicial to the substantial rights of the appellant.  The findings were affirmed on 23 August 2007.

:  (Nondecisional) The Applicant contends his Re-Entry Code was unjust and should be upgraded so he can be entitled to VA Benefits.  Effective 6 February 2015, the NDRB is authorized to change a NDRB Applicant’s Reenlistment Code if related to an accompanying change in discharge characterization or narrative, but this authority is strictly limited to those cases where an applicant’s narrative reason or characterization of discharge is changed and that change warrants revision of the previously issued reenlistment code.  Additionally, 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.

:  (Nondecisional) The Applicant contends he did not receive copies of the record of trial and that he did not get a response on his previous request for an upgrade.  The NDRB is not the agency of record holding any of the Applicant’s service or medical records, and, as such, is not authorized to release copies of service or medical records or other documents that are under the cognizance of another government department, office, or activity.  The Applicant should refer to http://www.archives.gov and look for Military Service Records under the Most Requested Section of the website to order his service or medical records.  The NDRB does not have any record of the Applicant submitting an earlier DD Form 293.

4:  (Decisional) ()  .  The Applicant contends his discharge was unjust because he was busted from E6 to E1.   Based upon available records, nothing indicates that the Applicant’s discharge was in any way inconsistent with the standards of discipline in the United States Marine Corps.  A preponderance of the evidence reviewed supports the conclusion that the Applicant committed offenses alleged, that separation from the Marine Corps was appropriate, and that a General (Under Honorable Conditions) discharge was warranted.  The NDRB recognizes that serving in the military is challenging.  Most servicemembers, however, serve honorably and therefore earn their Honorable discharges.  In fairness to those Marines and Sailors who served honorably, Commanders and Separation Authorities are tasked to ensure that undeserving servicemembers receive no higher characterization than is due.  The NDRB found the characterization of the Applicant’s discharge was equitable and consistent with the characterization of discharge given others in similar circumstances.  Clemency denied.

5:  (Decisional) ()  .  The Applicant contends post service conduct merits consideration for an upgrade.  The NDRB is authorized to consider post-service factors in the re-characterization of a discharge.  However, there is no law, or regulation, that provides that an unfavorable discharge may be upgraded based solely on the passage of time or good conduct in civilian life subsequent to leaving the service.  Normally, to permit relief, a procedural impropriety or inequity must have been found to exist during the period of enlistment in question.  Besides the Applicant’s statement submitted with his DD Form 293, he failed to provide any documentary evidence on his behalf for post-service consideration.  The Applicant could have provided documentation as detailed in the Post-Service Conduct paragraph in the Addendum with the recognition that completion of these items alone does not guarantee an upgrade from an unfavorable discharge as each discharge is reviewed by the Board on a case by case basis to determine if post-service conduct establishes that the in-service misconduct was an aberration.  Without post-service documentary evidence, the Board determined the awarded characterization of service shall remain BAD CONDUCT.  Clemency denied. 

Summary:  After a thorough review of the available evidence, to include the Applicant’s summary of service,  record entries, and discharge process, the Board found   Therefore, the awarded characterization of service shall remain BAD CONDUCT 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  discharge.  The Applicant is directed to the Addendum for additional information.

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), 701 South Courthouse Road, Suite 1001, Arlington, VA 22204-2490, or http://www.secnav.navy.mil/mra/bcnr/Pages/default.aspx 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:  Effective 6 February 2015, the NDRB is authorized to change a NDRB Applicant’s Reenlistment Code if related to an accompanying change in discharge characterization or narrative, but this authority is strictly limited to those cases where an applicant’s narrative reason or characterization of discharge is changed and that change warrants revision of the previously issued reenlistment code.  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